Thoughts on the day of the calm before the (electoral storm)

The final furlong is underway; the radio and tv are staging their legally enforced broadcasting blackout; internecine struggles reach their highest pitch. The election is less than 24 hours away and no one knows what will happen. No one knew five years that Fine Gael would do so badly; no one knew in 1977 that Jack Lynch would win an overall majority. That is the great beauty of our system: whatever about the merits of the parties and leaders on offer, it is up to us to decide the question: Who governs?

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I recently heard democracy being described as "government by opinion". The latest measurement of public opinion showed a five-point shift to Fianna Fail (41%), at the expense of a one-point drop for Fine Gael (27%) and a three-point drop for Labour (10%). When the PD's and the Greens are added to the equation, Monday's poll put the present Government parties and the Rainbow alternative tied at 43%.

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As I thought might happen, the Opposition yesterday raised the spectre of a Fianna Fail-Sinn Fein government. Both the Taoiseach and Minister denied the possibility of an explicit deal with Sinn Fein, but the latter stated Fianna Fail could receive “unsolicited support.” Eoghan Harris has said recently in the Sunday Independent that Bertie Ahern would rather take a chainsaw and cut off his own legs than give Mary Lou McDonald a ministry. I agree. I'd be amazed if a FF-SF deal were to happen this time around.

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Today's Irish Times Head2Head slot features articles by Bertie Ahern and Enda Kenny. Mr Ahern (sub req'd) says:
"Our record in government is second to none. We have raised pensions, cut hospital waiting lists from years to months, brought in 3,000 new gardaí, cut taxes, built roads and the Luas, raised child benefit and helped to create 600,000 jobs. This represents more progress in a shorter time than achieved under any government in our history.

I understand we have not solved every problem these past 10 years. I know that the advances we have made on so many fronts, and which are so visible around us, do not mean the end of the challenges we face. But I believe the best way ahead is to build on our progress, not turn our back on it. This election is about the future.

I am excited about the possibilities. There is so much more that we can do, now
that we have built the foundation of sustained prosperity. Fianna Fáil has a specific, costed and ambitious plan for Ireland's future. It's the Next Steps Forward. This is a plan that has been costed, and thought through."
After reeling off the campaign promises we have heard repeatedly over the last few weeks, Mr Ahern repeats claims he made in the debate last Thursday night, such as that the Fine Gael/Labour tax proposal amounts to "[t]ax cuts directed towards the wealthiest few", in particular top 3 per cent of earners, and that no child born today would benefit from the Fine Gael/Labour plan for free GP visits for children aged under five. (Enda Kenny fluffed the point last Thursday night, but explained to Pat Kenny on Radio 1 Monday morning that the plan is to negotiate the proposal in the first 100 days of the new administration and put it into effect in one fell swoop. The effect of that would be that, contrary to Fianna Fail's allegation, plenty of children born today would stand to benefit.) The Taoiseach concludes his Irish Times article by saying that:
"Enda Kenny's contract with Ireland is a fraud. It isn't worth the billboard it is written on."
...
"[H]ere is the choice: should we build on the progress of the last 10 years, or take a risk, with unproven leadership and uncosted promises?
I ask for the chance to work with you to keep building an Ireland that our children and grandchildren can live and prosper in, an Ireland of pride and great purpose. It's up to all of us to get out to the polls, so that the peace and prosperity of the last decade can be defended and developed.
Now is the time for Ireland to take the Next Steps Forward."


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Enda Kenny's Irish Times piece (sub req'd) predictably attacks the Taoiseach's recent use of the word "peripheral" to describe the problems in healthcare and education. After that jibe, Kenny sets out his vision:
"I understand what needs to be done to tackle the challenges facing our country. I have an ambition for the country and a vision for where it should be in the next five and 10 years. Having a vision of a strong economy with public services to match is not enough.
To realise that vision you need an agenda for action. I have set out my agenda for action in my Contract for a Better Ireland, which lays out the fundamental building blocks of a new and better country."
The article tries to focus readers' attention on the health service (the Fine Gael/Labour Alliance for Change has called the election a referendum on the state of the health service):
"To change the health service for the better, you have to change the government.
The commitments in my contract on health will bring a transformation to our hospitals and our families. With more beds, we reduce waiting in A&Es and for critical life-saving operations. We also make our hospitals places of healing rather than infection. With properly equipped isolation units we can control the hospital-acquired infections that are plaguing our nation.
With better healthcare for our children, we will be rearing the healthiest generation our country has ever seen.
Investment now will pay immeasurable dividends in future years, both in health and the quality of their lives."

The Fine Gael leader then repeats his pledge to hold himslef accountable to his Contract, and to hold Ministers accountable for incompetence:
"After years of cynicism about politics and politicians, after years of deception and broken promises, I believe it's time a politician stepped up to the line and took responsibility for their actions in government.
Having fulfilled my contract, and only having fulfilled my contract, will I stand again, before you, the people of Ireland, and ask you to re-elect me as taoiseach. And if I have not, I will not.
...
If you want politicians to be as accountable as you are in your own life, then vote for the contract and vote for Fine Gael.
Tomorrow, for the first time ever in an Irish election, people will have the chance to vote for a politician who is willing to stand up and take responsibility for their actions in government.
I am that politician."

Polls show hung Dail on the cards

After last Sunday's statement by the Taoiseach on his finances and the leaders' debates midweek, a ray of light for Fianna Fail in the shape of two new opinion polls. Today's Millward Brown IMS/Sunday Independent and Red C/Sunday Business Post polls show Fianna Fail gaining slightly against the FG/Labour alliance. The Sunday Independent poll was conducted on Monday and Tuesday - after the statement and before the debates, while the Sunday Business Post took the nation's temperature on Wednesday, Thursday and Friday.

The numbers are as follows. Sunday Independent: FF 37 (+2), FG 25 (-1), Labour 12 (-1), PD's 3 (no change), Greens 5 (no change), Sinn Fein 9 (-1), Independent/others 9 (-1). Sunday Business Post: FF 36 (+1), FG 27 (-2), Labour 11 (-1), Greens 8 (+2), SF 10 (+3), PD 2(-1) and Independent/others 6 (-2).

On these numbers, a hung Dail is a distinct possibility, with both alternatives coming up short of a majority. Fianna Fail will be happy the slide has ended, but a one-point gain in the only poll taken after the Bertie-Enda debate isn't much of a bounce. The Red C poll puts FG/Labour and the Greens on 46%, which (lest we forget) is more than the current Government managed in 2002. However, last time out both Fianna Fail and the PD's probably took more seats than expected on the number of first preferences they attracted. It seems to me that Fine Gael's target must be to reach or better its 1997 result of 27.9%. Working on the premise that the Millward Brown IMS underestimates Fine Gael support and the Red C poll is the more accurate, then FG is in the ballpark. The Red C poll also shows the Greens recovering well - they look a good bet for 8-9 seats. Therefore, FG/Labour's target is 74 or 75. Fine Gael needs to break the magic 50-seat barrier - a return to its 1997 level of 52 seats would do nicely. Enda Kenny would then get a majority.

But how likely is that? The first difficulty is that, like all general elections in Ireland, there is a degree to which Thursday will be 43 disconnected local battles. Many voters will look to whose is best for their area, rather for the nation. As Stephen Collins pointed out in yesterday's Irish Times, "as the strongest and most successful political organisation in the history of the State, [Fianna Fail] is better equipped than any other party to survive on an ebbing tide. There are a number of constituencies in which Fianna Fail could endure a significant vote loss but hold on to its seats." The second difficulty is that, whatever about how he came to own his house, Bertie Ahern remains the towering figure of modern Irish politics post-Lemass, both in terms of popularity and achievement. There will be people voting on Thursday (like Eoghan Harris, as he says in today's Sunday Independent), in order to get Bertie for a third term. Thursday night's debate reminded the voters that he remains a formidable operator. In comparison with Enda Kenny, he is the experienced choice for Taoiseach. The difficulty with that argument is that Fine Gael has only been in power for two of the last 20 years: There is hardly a non-FF politician in the land qualified for the job of Taoiseach, if one insists on significant recent ministerial experience.

Two final things of note. Firstly, Ivan Yates, former FG minister and now bookmaker, says the best odds currently favour the following outcome, as told to the Sunday Tribune: FF 64-66 or 66-69 (equal odds), FG 45-47, Labour 21-22, PD's 2, Sinn Fein, 9-10, Greens 9. The difference between those figures and a Rainbow majority is the difference between its projection for Fine Gael (45-47) and Fine Gael's target: 52.

Second, the front page of this morning's Sunday Tribune has the headline "Four days to go ... Fianna Fail's only option: Taoiseach Rabbitte or Taoiseach O'Caolain." The former has emphatically rejected Fianna Fail overtures, the latter's overtures have been emphatically rejected by Fianna Fail. The election could yet turn on a last-furlong shift on sentiment, as it did in 2002 due to Michael McDowell's capitalisation on the need to prevent one-party government. I wonder whether the spanner in the works this time might be public fear that a vote for Fianna Fail would be a vote for Sinn Fein in government. Personally I think that would be unfair on Bertie Ahern, who I believe is genuinely opposed to Sinn Fein participation in government. We'll see soon enough whether the FG/Labour alliance wants to make an issue of it. In an interview in today's Sunday Independent, Enda Kenny said: "Can you take the Taoiseach on his word on this matter? It's like this, power for Fianna Fail is the ultimate."

Latest betting on Election 2007

At present, Paddy Power has Kenny at 4-5 to be the next Taoiseach, Ahern at 5-4 and Cowen 6-1. Pat Rabbitte is 8-15 to be Tanaiste, whereas Michael McDowell has no better odds than Brendan Howlin - both are at 7-1. As for number of seats in the 30th Dail, the shortest odds are on FF to return with 63-66 seats (6-4), FG 52+ seats (10-11), Labour 23+ seats (11-10), Green party 9-10 seats (7-4), PD's 1-3 seats (11-10) and Sinn Fein 9-10 seats (11-10). If the parties get (say) 63, 52, 23, 9, 3 and 9, that would only leave 7 seats for others. With Joe Higgins a near-certainty for the Socialist party and Clare Daly in with a shout, that would leave only 5 Independents. It would also put Fine Gael, Labour and the Greens in government, with 84 seats i.e. a one-seat majority.

For the changing betting picture, see Irish Election Betting.

The Bertie-Enda debate

Last night's debate between the candidates for Taoiseach attracted almost a million viewers. But who won? All the contributors on Vincent Browne's radio show last night gave it to Bertie. By contrast, all three broadsheet newspapers scored it a draw. By contrast The headline in The Irish Times today was "Kenny scores on confidence and Ahern on detail." I must say that chimes with my view of the debate. As Stephen Collins puts it on page one of the Irish Times report, Enda impressed with the "confidence and the clarity of his message on services and accountability" and generally looked "confident and alert." The Irish Examiner headline was "No killer punchline means a messy draw" and the Irish Independent's verdict was "Ahern shades it but fails to land a knockout." RTE.ie said: "Most commentators agreed that Bertie Ahern won overall, despite a strong performance from Fine Gael leader Enda Kenny."

The challenger has a clear message (the Contract for a Better Ireland) and was intent on getting it across to those watching and listening. He stumbled a few times with figures, but I don't think that will have bothered many watching - the trench warfare over budgetary figures and projections probably went over the heads of most voters, including this one. Kenny also didn't deal properly with the Taoiseach's allegation that the top 3% of earners would gain most from the FG-Labour tax proposals. On the healthcare issue, which should have been his strongest area (by virtue of it being the Government's weakest flank), Kenny didn't score a clear victory. The speech as Gaeilge and the quote from Abraham Lincoln at the end were good touches.

Both began a little tensely, but got into their stride before long. Bertie gave a generally commanding performance and fought a tough, at times ferocious, rearguard action on the healthcare issue. I was also impressed by the easygoing way in which the Taoiseach emphasised his experience at the Cabinet table and that he answered well when Miriam O'Callaghan asked him to disagree with Tony Blair's statement that 10 years is long enough to be head of government. His opening breeziness evaporated when asked about his house and the loans he took from friends, but he had a free pass on that, since Kenny expressed no view on it. The Taoiseach shipped a few heavy blows, I thought, when Kenny pointed out that numerous Fianna Fail promises made in 2002 never came to pass, such as the Dublin Metro open by this year (building has yet to start), 2000 extra Gardai on the beat (admittedly that promise will be met in this fiscal year) and an end to waiting lists (albeit Bertie countered that lists have come down in many areas).

My own view? The debate ebbed and flowed. Probably the champion shaded it on points, but the challenger threw some good punches too.

Labour/PD/Green/SF leaders debate

So who won last night's debate? Examiner columnist Harry McGee's initial reaction was that "Rabbitte (relaxed, almost too Cheshire Cat) pipped it from McDowell (over negative, too prone to personal insults) from Adams (relaxed but woolly on specifics espeically on the economy) and Trevor (made some very good points; defended himself well but the writing on the hands was a disaster)." Let me give my view on each of the four leaders' performances, for what it is worth.

Rabbitte, aside from the smirk that seemed constantly on his face when others (especially McDowell) were speaking, was composed and avoided the squabbling between Sargent and McDowell, in which the Green leader in particular seemed intent on reprising the Rumble in Ranelagh. His remark that McDowell was acting "like a menopausal Paris Hilton" was just plain odd. Rabbitte seemed a little uncomfortable when asked how cutting the baic rate of income tax was consistent with drastic improvements in public services, but I thought he answered the question well. On the plus side, however, he did best in the opening set piece individual speeches and avoided having any serious blows landed on him. John at Semper Idem is right to say: "He was calm and collected, defended himself well, and came across very competently on those moments when the issues were discussed." I noticed on a number of occasions that he interjected after Sargent had made a point to agree with him, thereby trying to show the compatibility of Labour and the Greens.

McDowell was in fighting form and seemed determined to present the PD's (and by extension the present Government) as the only safe option when it comes to the country's economic and fiscal prospects. So he repeated the Greens' plan to raise €1 billion over five years via a levy on the banks; he quoted Rabbitte's remark that as Minister for Finance he would "afflict the comfortable and comfort the afflicted". His hardest blows fell on the strangely hapless Adams, though. When the Sinn Fein leader claimed to live on the average industrial wage, McDowell reminded him of his (Adams') holiday home in Donegal; when Adams responded that it's owned by the bank, McDowell, quick as a flash, asked whether it was the Northern Bank. Similarly, when Adams lamented the state of national drugs policy, McDowell shot back that the Provos had sold their paramilitary know-how to FARC narco-terrorists in Colombia in exchange for $25 million. I have to agree with Harry McGee though, that too much of McDowell's content was negative. It would have been better for him to spend more time emphasising the economic success of the last 10 years and building on his convention speech pledge to take Ireland "from good to great".

Sargent's opening speech was decent and, then went toe-to-toe with McDowell and showed no lack of confidence. The cog notes on his hand looked a little silly, but I don't think that will exactly be a matter affecting how people vote. He made some good points and got in his customary reference to how well the Greens have apparently done in government in Germany, Finland and Sweden, but probably would have liked more of a chance to make the points his party has cogently made on signature Green issues.

As for Adams, I think Mark Hennessy is right that he got "a hiding". Hennessy adds accurately: "Adams’ oft-repeated nonsense that he lives on the average industrial wage was cruelly exposed by the PD leader" and "Adams weak command of economics, particularly when he accused Labour of wanting to privatise the health service, was brought into the light, though rarely as clearly as this." Certainly Hennessy's conclusion is right too: "While Adams will not have lost any of his party’s core support in last night’s debate, there is little doubt but that he will have done little to attract second, third and fourth preferences from uncommitted voters." (I am at a loss as to how it can United Irelander can say that Adams performed better than McDowell and equally as well as Rabbitte.)

Marks:
Rabbitte 6.5/10
McDowell 6.5/10
Sargent 5/10
Adams 2/10

Evening Herald poll suggests FG gaining at FF's expense

As he prepares for tonight's Prime Time debate with Enda Kenny, an Evening Herald poll has bad news for Taoiseach Bertie Ahern. The poll shows that Fianna Fail is slipping in Dublin and that Fine Gael is gaining. The current Government lags a significant distance behind the possible alternative coalition. The figures in the Herald poll are as follows: Fianna Fail 29% (-8), Fine Gael 22% (+7), Labour 15% (no change), PDs 3%, Greens 8% and Sinn Fein 11%. That puts the FF/PD coalition on 32% and FG/Labour on 37%, rising to 45% when the Greens are included.

Irish Independent poll suggests Govt doing poorly, FG/Lab improving

Today's Irish Independent/Millward Brown IMS poll is bad for the Government. The poll, taken last Wednesday and Thursday, shows: Fianna Fail 35% (-3), Fine Gael 26% (+3), Labour 13% (+1), PDs 3% (-1), the Greens 5% (-1), Sinn Féin 10% (+2) and Independent/others 8% (no change).

The 44% achieved by the FG/Labour/Green Rainbow would likely be insufficient to form a majority. But, as RTE notes, surveys from this firm "have in the past been said to overestimate Fianna Fáil and underestimate Fine Gael support." For example, in 2002, Millward Brown IMS gave Fianna Fail 50% just before the election. In the event, the party took 41.5% of first preferences. On that basis, if Fine Gael were to outperform its 26% result in today's poll on election day, it would move close to entering government. Surely though today's poll couldn't overestimate Fianna Fail support, could it?

Sunday poll suggests FF slipping, FG/Lab doing well

Today's Sunday Business Post/Red C poll shows a drop in support for Fianna Fáil and a gain for Fine Gael since last Sunday. The PDs improve on their (dismal) showing of last week. The Greens' poor run of polls continues, while Sinn Féin received no bounce from the week's events in Belfast. The figures: FF 35% (-2), FG 29% (+3), Labour 12% (no change), PDs 3% (+1), SF 7% (-1), Greens 6% (-2), Independents/others 8% (+1). The number answering undecided is 18%.

I decided to see what the average of today's poll, plus four other polls to date (Irish Times May 11th, Sunday Business Post May 6th, Irish Examiner May 5th and Irish Times April 27th), would reveal. The average support for the parties, with the change from 2002 in brackets, is as follows: FF 35.8% (-5.7), FG 28% (+5.5), Labour 12% (+1.2), PDs 2.4% (-1.6), Green 6.2% (+2.4), SF 8.6% (+2.1), Independent/other 7.2% (-3.8).

A look back reminds us that, in 1997, Fine Gael won 27.9% and Labour 12.9%, which resulted 54 and 21* seats, respectively. That indicates that both parties will need to take at least the percentage of first preferences they did in 1997, if Fianna Fáil is to be ousted from government. (*Labour numbers include Democratic Left.)

One way to pick your party

The Department of Political Science in Trinity has launched a webiste called pickyourparty.ie, which is intended to give users an indication of the political party closest to their own views. By means of a simple survey, the website calculates the party with which the user's expressed preferences tally most accurately. It might be more accurate, if the survey covered a greater range of questions, but it is an interesting innovation nonetheless.

The mechanism is based on an expert survey of the various party's on the political issues, but it the site notes that "the survey was administered in 2002-2003 any policy-shifts that have occurred since that point in time are not accounted for on this website." Any number of policy shifts have, of course, occurred in that timeframe last few months, e.g. Labour's and Sinn Fein's changed tax policies (albeit a far greater leap in the latter instance). The emphasis of Fianna Fáil's fiscal policy has changed since the 2002-2003 period too, to take another clear example.

The end of the Blair era

Yesterday Tony Blair announced he will resign as U.K. prime minister on June 27th. This has been expected, ever since Mr Blair made clear before his third general election victory in 2005 that he would not run again as prime minister and leader of the Labour party. Indeed, it was "one of the most telegraphed resignations in political history."

Taoiseach Bertie Ahern said Mr Blair "never lost interest" in Northern Ireland, despite setbacks. For this he would have "an honoured place in Irish history". "Tony Blair has been a friend to Ireland. And I am proud also to count him as a friend of mine. " Other world leaders paid tribute too. U.S. president George W. Bush said: "I have found him to be a man who's kept his word, which sometimes is rare in the political circles I run in. When Tony Blair tells you something, as we say in Texas, you can take it to the bank. He is a remarkable person, and I consider him a good friend." White House spokesman Tony Snow described Blair as an "extraordinary leader of the United Kingdom." The president of the EU commission, José Manuel Barroso, said "Tony Blair has taken Britain from the fringes to the mainstream of the European Union.He leaves an impressive legacy including his commitment to enlargement, energy policy, action against climate change, and for fighting poverty in Africa." Dutch prime minister, Jan Peter Balkenende, said that with Mr Blair's departure "a prominent leader disappears from the European and world stage. During tense moments, Blair was the binding force. Blair did not shrink from rowing against the current if he thought it was necessary."

Blair leaves the stage, having endorsed his Chancellor of the Exchequer, Gordon Brown, the man who has presided over 10 years of uninterrupted economic growth and in some ways a different type of politician, as his successor. Proper analysis of the Blair premiership awaits the perspective of history, but a few things can be said with a degree of certainty. In 1997, New Labour tapped into Britain's collective psyche. To bring Labour from a position of defeatist opposition to three successive election victories (two of which were major landslides) was a great political acheivement. It is undoubtedly true that Blair was a prototype 21st century politician; as is has been correctly said, "his success hinged on his remarkably deft public touch. His rise coincided with that of 24-hour TV news channels, and early on he was expert at picking the national mood." A former barrister, Blair added formidable rhetorical strength to his personal charisma and public relations awareness. Any number of brilliant speeches could be cited: his 1999 Chicago speech in which he set out his views on the interdependence of the international community; his March 2003 speech arguing in favour of war in Iraq ("To show that we will confront the tyrannies and dictatorships and terrorists who put our way of life at risk. To show at the moment of decision, that we have the courage to do the right thing. I beg to move the motion."); his final convention speech as party leder last autumn.

Even now though, claims are being made that Blair's career was overshadowed (or ruined) by his decision (variously described as out of character, or in error) to support the U.S.-led coalition in Iraq. David Brooks in today's New York Times (sub. req'd) takes the following view:

"The conventional view of Tony Blair is that he was a talented New Labor leader whose career was sadly overshadowed by Iraq. But this is absurd. It’s like saying that an elephant is a talented animal whose virtues are sadly overshadowed by the fact that it’s big and has a trunk. Blair’s decision to support the invasion of Iraq grew out of the essence of who he is."

Brooks argues that, over the last decade, Blair has emerged as "the world’s leading anti-Huntingtonian." Brooks contrasts the view of Samuel Huntington (broadly speaking) that "humanity is riven by deep cultural divides and we should be careful about interfering in one another’s business" with what he calls Blair's communitarian view that "the process of globalization compels us to be interdependent, and that the world will flourish only if the international community enforces shared, universal values." (“Globalization begets interdependence, and interdependence begets the necessity of a common value system to make it work.”)

Brooks traces Blair's worldview back to Scottish theologian James McMurray. (“If you really want to understand what I’m all about, you have to take a look at a guy called John Macmurray,” Blair once said. “It’s all there.”), with whom Blair came into contact after his father suffered a debilitating stroke. Blair absorbed from Macmurray a strong communitarian faith, which has influenced him throughout his political life. Brooks argues that a belief in a universal human community was the impulse behind Blair's foreign policy, from Kosovo through Sierra Leone and Afghanistan to Iraq. Over the last three years or so, both left and right, recoiling from the violence in Iraq, have grasped for ideas more like those espoused by Huntington, rather than Blair. As Brooks writes:

"There has been a sharp rise in the number of people who think it’s insane to try to export our values into alien cultures. Instead of emphasizing our common community, people are more likely to emphasize the distances and conflicts between cultures. Whether the subject is immigration, trade or foreign affairs, there is a greater desire to build separation fences because differences in values seem deeply rooted and impossible to erase. If Huntington turns out to be right, then Blair will be seen as one of the most naïve communitarians of all time. But I wouldn’t count him out just yet. It could be that over the long term, and despite the disaster in Iraq that he co-authored, his vision of a human community will be vindicated. Or it could be that Blair’s vision of that community was right — except in the Middle East, the region where he most aggressively sought to apply it."

Update (Sat. May 12th, 4.40pm)
Brooks' piece has been posted online here.

FF gains, FG/Labour steady

The TNS/mrbi poll in tomorrow's Irish Times shows a slight gain for Fianna Fail, a slight drop for Fine Gael, but Fine Gael's loss is balanced out by an increase in support for Labour; thus the alternative alliance's strength remains in the region of government, were the poll's result to be replicated in a fortnight's time, when one adds the Green party's support. The numbers are as follows: FF 36% (+3), FG 28 (-3), Lab. 13 (+3), PD 2 (-1), SF 10 (no change), Green 5 (-1), Independent/others 6 (no change), undecided 15 (-4). From Fianna Fáil's point of view, at least the poll gives cause for optimism that the party hasn't suffered over the last two weeks. From the point of view of Fine Gael and Labour, 41% between them represents a decent benchmark; it certainly suggests they are in with a shout.

Meanwhile, RTE's Election 2007 site is up and running.

Update (Fri, May 11th, 1.15pm)
Today's Irish Times poll also aksed voters: "Which of FF/PDs or FG/Labour (and possibly the Greens) would you like to see form the next Government?" 36% (+1) answered FF/PDs; 38% (+2) backed FG/Labour (and possibly the Greens); 13% (-2) wished for neither; 13% (-2) didn't know. The alternative also recorded a 35-34 lead when voters were asked which coalition was most likely to form the next Government. This perception finding may be the most important in the entire poll. The party leaders approval ratings were: Ahern 54% (+1), McDowell 34% (+2), Kenny 47% (+6), Rabbitte 50% (+2), Sargent 42% (-1) and Adams 51% (+5).

Damian Loscher of TNS/mrbi, analysing the poll, writes that:
"Arguably, the pledges from the main parties - more gardaí, better health service, lower taxes, stamp duty reform - are not sufficiently dfferentiated to suggest this campaign will be won or lost on the hard issues. Instead the softer issues of character, energy, ambition and confidence will define the campaign. In this context, the scheduled television debate between Ahern and Kenny may yet prove decisive."

Stephen Collins writes:
"A vote share of 28 per cent for Fine Gael and 13 per cent for Labour would give the alliance a better chance of winning the election than the the 31:10 proportions in the last poll. The Labour share of the vote in Dublin has increased dramatically since the last poll and it is now in joint second place with Fine Gael on 15 per cent. ... The further slide in the vote for the Greens will come as a disappointment, particularly as it is now in fifth place in Dublin on six per cent."

Ahern to debate Kenny

The two candidates for Taoiseach are to have a head-to-head debate on May 17th, a week before polling day. It is reported that the debate will last just over an hour and will take place on a special extended edition of Prime Time. RTE also plans a debate between Green party leader Trevor Sargent, Gerry Adams and Michael McDowell, subject to agreement by the Tánaiste. How Pat Rabbittte views the latter development is not reported.

Text of Ian Paisley's speech at Stormont yesterday

One can admire the prose without necessarily agreeing with every word of it:

How true are the words of Holy Scripture, 'We know not what a day may bring forth.'
If anyone had told me that I would be standing here today to take this office, I would have been totally unbelieving. I am here by the vote of the majority of the electorate of our beloved Province. During the past few days I have listened to many very well placed people from outside Northern Ireland seeking to emphasise the contribution they claim to have made in bringing it about.
However, the real truth of the matter is rather different. If those same people had only allowed the Ulster people to settle the matter without their interference and insistence upon their way and their way alone, we would all have come to this day a lot earlier.
I remember well the night the Belfast Agreement was signed, I was wrongfully arrested and locked up on the orders of the then Secretary of State for Northern Ireland. It was only after the Assistant Chief of Police intervened that I was released. On my release I was kicked and cursed by certain loyalists who supported the Belfast Agreement. But that was yesterday, this is today, and tomorrow is tomorrow.
Today at long last we are starting upon the road - I emphasise starting - which I believe will take us to lasting peace in our Province.
I have not changed my unionism, the union of Northern Ireland within the United Kingdom, which I believe is today stronger than ever. We are making this declaration, we are all aiming to build a Northern Ireland in which all can live together in peace, being equal under the law and equally subject to the law. I welcome the pledge we have all taken to that effect today. That is the rock foundation upon which we must build.
Today we salute Ulster's honoured and unaging dead - the innocent victims, that gallant band, members of both religions, Protestant and Roman Catholic, strong in their allegiance to their differing political beliefs, Unionist and Nationalist, male and female, children and adults, all innocent victims of the terrible conflict.
In the shadows of the evenings and in the sunrise of the mornings we hail their gallantry and heroism. It cannot and will not be erased from our memories. Nor can we forget those who continue to bear the scars of suffering and whose bodies have been robbed of sight, robbed of hearing, robbed of limbs. Yes, and we must all shed the silent and bitter tear for those whose loved one's bodies have not yet been returned. Let me read to you the words of Deirdre Speer who lost her Police officer father in the struggle:

'Remember me! Remember me! My sculptured glens where crystal rivers run, My purple mountains, misty in the sun, My coastlines, little changed since time begun, I gave you birth.
'Remember me! Remember me! Though battle-scarred and weary I abide. When you speak of history, say my name with pride. I am Ulster.'

In politics, as in life, it is a truism that no-one can ever have one hundred percent of what they desire. They must make a verdict when they believe they have achieved enough to move things forward. Unlike at any other time I believe we are now able to make progress. Winning support for all the institutions of policing has been a critical test that today has been met in pledged word and deed. Recognising the significance of that change from a community that for decades demonstrated hostility for policing, has been critical in Ulster turning the corner.
I have sensed a great sigh of relief amongst all our people who want the hostility to be replaced with neighbourliness.
The great king Solomon said, 'To everything there is a season, and a time to every purpose under heaven.
'A time to be born and a time to die. A time to plant and a time to pluck up that
which is planted.
'A time to kill and a time to heal. A time to break down and a time to build up.
'A time to get and a time to lose. A time to keep and a time to cast away.
'A time to love and a time to hate. A time of war and a time of peace.'
I believe that Northern Ireland has come to a time of peace, a time when hate will no longer rule. How good it will be to be part of a wonderful healing in our Province. Today we have begun to plant and we await the harvest.

Supreme Court term 2006/07: Hayes v Minister for Finance

On February 23rd last, the Supreme Court gave judgment in Hayes v Minister for Finance [2007] IESC 8. The facts were these: the plaintiff was injured after being thrown from a motorbike (driven by her then boyfriend) on which she was a pillion passenger, causing her serious injuries, after the motorbike collided with a car that had been travelling in the opposite direction. The driver of the other car had slowed to all but a stop. No action was brought against the driver of the other car. Proceedings were brought against the respondent, arising out of the actions of members of the Garda Siochana, who had followed the motorbike, after it had driven through a Garda checkpoint. The claim was that the Gardai were at least partly responsible for the crash (and hence the plaintiff's injuries): the motorcyclist panicked, due to the Garda pursuit of his vehicle. The High Court (Finlay Geoghegan J) accepted this argument, concluding, to quote the judgment of Kearns J for the Supreme Court, that "the cause of the speed at which the motorbike was being driven at the time of the accident was the pursuit of the bike by the garda vehicle."

The Supreme Court allowed the appeal and and dismissed the plaintiff's claim. Having been present during part of the argument in the Supreme Court, the result wasn't a major surprise. The State, represented by Brian Murray SC, argued that not only were the Gardaí entitled to investigate offences, their duty to uphold the law bound them to do so. The officers involved were perfectly justified in pursuing the motorcycle. There was no evidence that the Garda car gad at any stage exceeded 50 mph. While the driver of the motorcycle believed the Garda car was still in pursuit, he in fact never saw it again from the time he left Cashel until the accident occurred nearly 10 miles further down the road. In the alternative, even if the Gardaí's action had been negligent, the driving of the motorcyclist had been a novus actus interveniens - it was the proximate cause of the accident and absolved the Gardaí of any blame. Counsel for the plaintiff, Michael McMahon SC, submitted that, since the Gardaí had no hard information that any serious crime had been committed by the driver and thus had no right to engage in a chase at speed. Although it doesn't seem to be recorded in the judgment, I seem to remember the State arguing that the Gardaí could have been liable, in a case where the pillion passenger on a motorcycle was in fact a hostage and a serious crime followed shortly after the motorcyle drove through a checkpoint. If the Gardaí failed to pursue, why would the hostage not later be able to sue the State and argue that the Gardaí had been negligent in not pursuing?

The Supreme Court agreed that it was "part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury." Therefore, "if, in order adequately to detect and prevent crime, they find it necessary to require motorists to stop, the common law gives them full power to do so." (citing Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 I.R. 265). These powers must be exercised "bona fide and not in a capricious or arbitrary manner." There was no allegation or evidence whatsoever of mala fides in the present case. Kearns then added the following:

"I think therefore that Mr Murray is correct in describing the relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when first observed."

The motorcyclist "was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever." Given that after Cashel the Garda car fell several (eventually almost 10) miles behind, did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? In short, the Supreme Court's anser was "No, it did not." To complete today's merry trip through the Latin phrases used in legal terminology, Kearns J discussed the distinction between a causa sine qua non and a causa causans. Since the Gardaí's action were not a causa causans of the plaintiff's injuries, the appeal must be allowed and the claim dismissed.

Miss D may not be prevented from travelling to U.K., says High Court

The High Court today held that Miss D can travel outside of the country for an abortion. Mr Justice McKechnie was "firmly and unequivocally" of the view that that there is "no statutory or constitutional impediment" which would prevent her from going to the UK. (Last week I discussed the travel amendment and a previous case in this area, A and B. It's unclear at this stage whether any party to the current case cited A and B to the Court.)

Miss D judgment expected tomorrow

Mr Justice McKechnie will decide Miss D v HSE today at 2pm.

Paddy Power poll

Over at Irish Election, Adam takes us through how the 30th Dáil will look, if Paddy Powers' odds are right in every constituency. Thus, in a five-seater the five candidates with the best odds are counted as elected. To be exact, Adam's exercise covers 39 out of the 43 constituencies; Paddy Powers seem not to offer odds on the other four. In this simulated poll, then, 78 seats would represent a Dáil majority. The results as calculated by Adam give: FF 64 seats (-11), FG 42 (+14), Lab. 19 (-1), SF 10 (+5), Green 8 (+3), PDs 3 (-5), Socialist 2 (+1), Independent 6 (-6).

By this reckoning FF/PDs would take 67 seats and FG/Lab./Green 69 seats. Other hypothetical combinations include FF/Green 72 seats and FF/Labour 83 seats. The latter is the only viable majority by this measure.

Two polls show alternative edging ahead

The Irish Examiner says Saturday's opinion poll leaves the alternative alliances on "a knife-edge". The state of the parties is as follows: FF 37% (-2), FG 26% (+2), Lab. 13 (+3), PDs 2% (-4), Green 6% (unchanged), SF 8% (-1), Independent/other 9% (+3). The Examiner poll was conducted last Monday and Tuesday, before the Taoiseach's explanation on Thursday of his financial affairs in 1993/4. The affair took another turn this afternoon when the Tanaiste asked for a "a credible and comprehensive public statement." McDowell added that "no purpose would be served by them leaving Government and handing over the Justice and Health portfolios to people who are unfamiliar with the issues" and that he would go back into Government with Fianna Fáil if a credible account was given by the Taoiseach and accepted by the Irish people.

Today's Sunday Business Post/Red C poll shows a similar picture, but in fact shows Fianna Fáil gaining over the two weeks since the last such poll, despite what the media has been describing as a disastrous opening week of campaigning for the party. The results: FF 37% (+2), FG 26% (-1), Lab. 12% (+1), PDs 2% (-1), Green 8% (-1), SF 8% (unchanged), Independents/others 7% (unchanged).

In other words the Examiner gives the FG/Labour/Green alternative a 45-39 lead over the FF/PD incumbents, while the Business Post scores it 46-39 to the alternative. Last time, 45.5% gave FF and the PDs 89 seats.

The Green party manifesto

The Green party launched its manifesto yesterday. At 36 pages it is half the length of the PD's manifesto, less than a third as long as Labour's 128 page offering, and less than a quarter as long as the Fianna Fail document's 153 pages. The Greens are possible kingmakers, as the April issue of Magill declared. Fine Gael and Labour are working on the assumption that the Greens, though campaigning as an independent party, will join them in government, if the numbers add up. That is probably a fair assumption. The picture becomes more complicated, in the event that the Fine Gael-Labour coalition fails to take about 75 seats. If that is the case, the Greens are unlikely to be able to make up the numbers. If Fianna Fáil loses (say) 15 or 18 seats, the possibility would emerge of a FF-PD-Green Government, but internal opposition within the Green party would seem to render it unlikely. The manifesto's title is "It's time".

So what's in the manifesto? It is a thoughtful document; mercifully concise, it's an improvement from what Mark Hennessy in The Irish Times calls "[t]he days of sandals, and woolly jumpers, and occasionally hare-brained ideas". Having said that, the hare-brained schemes are not all gone, e.g. the proposal to increase capital gains tax to 25%. As might be expected, the first topic is energy. The Greens would "change the Social Partnership process to include a third sustainability pillar putting energy targets at the centre of the national economic planning process." There is a good argument for saying that the partnership system needs to be, if anything, downgraded. 20 years ago, the country was in dire economic straits and all hands were needed on deck to get us out of the catastrophe. One wonders now whether the idea has outlived (and outgrown) its usefulness. On the great global warming controversy, the Greens promise to seek "an all-party approach to cut Ireland’s carbon emissions by 3% annually". How this would tie in with negotiating policy in this area with unelected trade union leaders and others is somewhat unclear. Other policies aim at improving building standards and boosting renewable energy sources. The latter in particular has support from most, if not all, parties.

Rural communities have long been hostile to the Greens. This time they might make some progress. In Carlow/Kilkenny, for example, Mary White won't be a million miles from taking a seat. The Greens' manifesto says "Irish agriculture is at a crossroads." The party proposes to "lobby for changes in the World Trade Organisation to protect domestic agriculture from being undercut by imports that are not subject to the same quality, health and environmental standards", as well as banning animal cloning and ensuring Ireland becomes a "GM-free zone". The party also wants 5% of national acreage to be organically converted by 2012.

In relation to employment law, the party promises to consolidate the 40 existing pieces of legislation into a single statute. More problematically, and vaguely, the manifesto pledges to "strengthen our redundancy and unfair dismissal laws to prevent job displacement and a ‘race to the bottom’ in wages and working conditions".

On taxation, no Green manifesto would be quite complete without a paean to the wonders of the Scandavian system: "The Scandinavian countries continue to demonstrate that high levels of public social expenditure retain the support of taxpayers and employers and do not impede economic performance." The Swedish government consistently taxes and spends over 50% of GDP. Not entirely coincidentally, the Swedish economy has created "not a single net job ... in the private sector" since 1950. Likewise, "Swedish doctors spend more than half their time on administration, so they see fewer patients than doctors in any other developed country." Sweden's relative economic decline over the last 20 years has occured while the State spent over half of GDP. (In 1988, the figure was 55.3%.) Is this what the Greens want to see happen in Ireland? The manifesto's statement (or is it a complaint?) that "Ireland spends a modest share of its wealth on social protection in comparison with most other EU countries" is an indicator of Green party budgetary policy. It is lazy to simply complain that we should be like the Scandavanian states (of which Sweden is usually held up as the exemplar), without addressing such questions. (By the way, I don't mean to suggest that Sweden has not set positive examples in some areas, such as its liberal vouncher-based school system.)

On the substance of the Greens' proposals, while there is a promise to leave the rate of corporation tax unchanged, the manifesto adds a caveat that the Greens would try to restructure corporate tax reliefs, thereby probably increasing the corporate tax burden. The manifesto claims that Ireland is over-reliant on foreign direct investment (FDI), without ever persuading this reader that the Greens know how to steer the Irish economic ship away from FDI without it going onto the rocks. We've done well form FDI to date; caution is advisable. Some of the tax proposals are unambiguously positive, however. The idea of "a system for regularly and rigorously assessing, auditing and reviewing tax expenditures including cost/benefit analysis for all tax reliefs" is a sound one, as is (even more so) the proposal to "index-link tax credits and bands to provide workers with protection from the effects of inflation and to avoid taxation by stealth". The latter should have been on the books long ago, but well done to the Greens for committing to it. The changes to VAT and PRSI are positive too.

There is much else in the document; it is worth a read.

Great orators of modern times

“Dream the impossible dream. Dream of the four seats. You can do it. You can deliver the four seats. If you achieve your dream, that dream will become a reality.”
Dick Roche, Minister for the Environment, Portlaoise, April 18, 2007

"I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men are created equal." I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

...

This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring.""
Martin Luther King, Washington, DC, August 28, 1963

Is stamp duty all that important?

The biggest issue of the election campaign to date, stamp duty, has received too much attention, said NUI Maynooth economics lecturer Jim O'Leary in yesterday's Irish Times (sub. req'd.):

"The attention devoted to stamp duty is a measure of how preoccupied we have become with property and seems entirely out of proportion to the objective magnitude of the matter. Last year the total yield from the tax was €3.7 billion, of which €1.3 billion came from residential property. The latter figure amounts to less than 1 per cent of GNP and compares with receipts of over €13 billion from VAT, €12 billion from income tax and a total tax take of €45.5 billion.
Another way of contextualising the discussion is to compare the coverage afforded to the stamp duty issue with the amount of time that has been devoted to debating the future of our education system. Spending on education amounted to €7.6 billion (5 per cent of GNP) last year, and the quality of that education will be a key determinant of our economic and social well-being for many years after election 2007 has become a distant memory."

More interestingly, perhaps, he thinks that not much of the recent "softness" in the housing market is due to uncertainty over the fate of stamp duty. First the statistics:

"House price growth has clearly run out of steam in recent months. According to the Permanent TSB/ESRI index, prices nationwide fell by 0.6 per cent on average in March, after being flat in February and rising by just 0.1 per cent in the months November through January."

Rather than suggest this is due to the stamp duty debate, O'Leary sees "other potentially powerful negative factors at work, including a sizeable hike in interest rates and a shift in sentiment." Indeed, "the softening of prices has been as pronounced in the first-time buyer market where stamp duty is effectively a non-issue (first-time buyers accounted for 5 per cent of the total raised in residential stamp duty last year) as it has been elsewhere." O'Leary's conclusion is that "uncertainty about stamp duty has had little or no impact on house prices and probably no more than a modest effect on volumes."As an interesting footnote, he suggests cost projections of reform put forward by Fine Gael-Labour (€460m) and the PD's (€355m), which are "based on the constellation of house prices and sales volumes that obtained in 2006 ... are likely to exaggerate the cost, perhaps by a very large margin."

Irrespective of the importance of stampt duty, the reform proposals put forward by the PD's. then Labour and then Fianna Fail are all commendable. Fine Gael's proposed three-year timeframe seems to have gone by the wayside - and justifiably so.

Fine Gael and Labour's Alliance for Change

Following the launch yesterday Labour's manifesto A Fair Society, which I look forward to reading at more leisure (after all, there seems a good chance that they will be in Government by next month), Fine Gael and Labour today announced an "Alliance for Change". In a joint statement, Enda Kenny and Pat Rabbitte said:

"Since September 2004, our two parties have worked together to present the Irish people, not alone with a choice of Governments, but with a choice of futures for our country. Voting for the Alliance for Change will set our country on a new path towards a Fair Society and a Better Ireland. A vote for Fine Gael and Labour is a vote for change.
Never before in the history of the State have two parties come together in advance of a general election to present detailed agreed policies to the people. At our meeting in Mullingar in 2006, we committed ourselves to developing joint policies on health, policing and on economic management. As the election campaign begins, the Irish people now have before them our comprehensive proposals on these vital issues."

The statement then outlines agreed proposals on taxation, healthcare, policing, development aid and (an issue I believe needs much more debate than it has received) public sector reform.

FF manifesto

Fianna Fáil launched its manifesto (pdf.) yesterday. This post is nothing like a full analysis; it's just some excerpts I came across in glancing through it. On foreign affairs, the manifesto says:

"Neutrality is central to our vision of Ireland as the bridge between the developed and developing world, the intermediary and facilitator in peace processes, the first on the ground in a major humanitarian crisis – the model UN State for the 21st century. Our policy for the next five years is to Make Neutrality Count. We believe neutrality enhances our standing internationally. Our goal is to use that standing to build peace and deliver development." p12/153 (pdf.)

The document also states an intention to place Ireland "at the heart of UN efforts to respond rapidly to humanitarian and human right crises in the developing world." ibid. The manifesto also promises not to establish diplomatic relations with Burma until Aung San Suu Kyi is released and to press for a complete ban on the use of cluster bombs. p 13/153 The word "terrorism" is nowhere to be found in the document; the only reference to nuclear power is in relation to Sellafield. p 65/153. There is no mention of what should be the E.U.'s policy towards Iran.

The FF manifesto reiterates the Government's commitment to a constitutional amendment on the rights of the child, one of the goals of which is to "put an end to the tragic position which forbids children in long-term care or the children of a marriage from being adopted by loving parents." p 133/153 Another stated goal is to "ensure that the best interests of the child are put centre stage in the adoption and care systems and in all custody disputes." I was under the impression that the latter was already the law. (See Guardianship of Infants Act 1964, s 4)

In relation to the criminal justice system, the manifesto proposes setting up "a Judicial Sentencing Commission under the auspices of the Courts Service ... comprised only of serving judges from each of the State’s courts and its powers will include the power to establish sentencing guidelines." p 103/153. It says these guidelines will "improve the consistency of judicial sentencing without impairing the independence of trial judges in specific cases", but that trial judges will be "required to follow the Commission’s guidelines or to explain why the guidelines are not being followed in any particular case." ibid. Formal annual reviews will be instigated to monitor implementation of the new sentencing and bail regimes mandated under the Criminal Justice Act 2007. p 104/153. There would also be a new provision allowing the D.P.P. to appeal District Court sentences on the grounds of undue leniency. In addition, the "two strikes and you're out" mandatory sentencing regime recently introduced for drug crime by introducing similar proposals in respect of violent crime and sexual offences. ibid. Interestingly, but somewhat vaguely, the FF manifesto pledges to "[i]ntroduce means to ensure that criminal trials can no longer be collapsed because of legal technicalities. This will include legislation and, if necessary, appropriate amendment to the Constitution."

Murphy and McGrath v Minister for the Environment

Independent TD's Catherine Murphy and Finian McGrath have brought a High Court action challenging the constituency boundaries to be used in the May 24th general election. The applicants' argue that "an analysis of Census figures released last month shows a number of constituencies where people will be under represented and others where they will be over represented." They say that "11 out of 43 constituencies are in clear breach of Article 16 of the Constitution." As the Irish Times reported yesterday, Donal O'Donnell SC said both TDs "accepted the validity of the general election that had been called and the timing of their action would have no bearing on its validity. The urgency consequently disappeared and there were expert witnesses on either side to be called in the case which would last at least four days." Frank Callanan SC, for the TDs, in reply said that the applicants did not seek to restrain the dissolution of the Dáil or to impugn the legitimacy of the election. In addition, a man living the Dublin West constituency, Feargal Molloy, has attempted to join the constitutional challenge.

Edward McGarr of McGarr solicitors has posted the applicants' legal submissions online. They make interesting reading. The matter has been adjourned and put in for mention on May 8th.

Arguments in Miss D case

The High Court heard argument today in the Miss D case. Eoghan Fitzsimmons SC, for Miss D, argued that the State was entitled under the Healthcare Act 2004 to direct the HSE to permit the girl to travel. Mr Fitzsimons said the HSE wrote to gardaí on 26 April to ask them to prevent the girl from travelling. He said the HSE had no power under the Childcare Act to prevent the girl from travelling. In her affidavit, Miss D, who has been the subject of an interim care order since March due to the conduct of her mother, has said though she is deeply distressed at the thought of carrying her child to full term knowing it will die, she is not suicidal. Counsel also represent for the HSE, her mother, the Attorney General and the unborn. RTE radio suggested this evening that argument is unlikely to be completed tomorrow, given the number of parties represented. (The prospect then arises of an appeal to the Supreme Court.)

Mr Fitzsimons said the HSE’s claim that under law she cannot travel would require Miss D to carry the baby full term only for it to die. He said that would subject her to degrading treatment. It would be "most inhumane" and that Miss D would suffer mental and physical trauma and great discomfort. He then "document[ed] medical studies which showed complications from anencephaly and a risk to the life of mothers in these circumstances." The last point is important. If it is shown that an abortion is necessary to protect Miss D's life, then the procedure would be lawful in Ireland, under the law as stated in the X case. Given the number of parties represented at the hearing (five), Mr Justice McKechnie's original plan to hear all argument today and give judgment early next week has fallen through. The case resumes tomorrow. It is possible that the Court might sit on Monday, if necessary, even though it is a Bank Holiday.

Update (Friday May 4th, 11.45 pm)
Today's Irish Times reported another argument made by Mr Fitzsimons on behalf of Miss D, namely that the unborn child in this case is not entitled to constitutional protection, because it has little or no viability, due to suffering from anencephaly. This argument, which it seems was conceded by State lawyers in a separate case brought by an Irish woman to the European Court of Human Rights. (That case was dismissed last July without reaching the substantive arguments regarding abortion.) If accepted by the court, it would add another ground - genetic abnormality rendering the unborn child non-viable - on which abortion would be lawful in Ireland.

It appears tonight, that the view of the HSE has changed. The Irish Times reports that:
"The Health Service Executive (HSE) today said it would not stand in the way of a teenage girl who wants to go to the United Kingdom for an abortion. Even though they moved quickly to stop the 17-year-old last month, lawyers told the High Court they were now prepared to let her travel under certain conditions. No indication was given if and when the teenager, known only as Miss D, will apply to leave. The change of heart came as a third day of hearings in the dispute drew to a close, with the case set to resume on Monday. The HSE will agree to let Miss D leave for the UK on the grounds she has consent from her mother and a judge."
Gerard Durkan SC, for the HSE, set out conditions on which the HSE would consent to allowing the girl to travel. (The extent to which the HSE has any power over her travelling anywhere is unclear.) Mr Durkan said that, if certain criteria were met, "the HSE's view would be that it would not be in her best interests to stop her". Mr Durkan added that "the HSE had been placed in an awkward situation and hindsight was a wonderful thing." It is reported that counsel for the State and for the unborn child are still to make submissions.

New judicial appointments

The Government nominated 17 new judges on Wednesday. The appointments involve six new High Court judges, five new Circuit Court judges and six new District Court judges. The Irish Times suggests it is the largest number of judicial appointments at one time ever. (This makes sense. After all, as recently as the 1960’s, there were only five or six High Court judges.)

The High Court appointees include some interesting choices. George M Birmingham SC practices in judicial review and criminal law; he often prosecutes criminal cases on behalf of the State. Born in 1954, he is a graduate of Trinity and King's Inns. After serving on Dublin City Council, Birmingham was elected TD for Dublin North Central in 1981 for the Fine Gael party and served until his defeat in the 1989 general election. In the 1980's, he was at various times Fine Gael junior minister in the Departments of Education, Labour and Foreign Affairs, during Garrett Fitzgerald's time as Taoiseach. More recently, Mr Birmingham was the sole member of the Commission of Inquiry into the death while in Garda custody of Dean Lyons. (The report is available here.) Google "George Birmingham SC prosecuting" and you will find some of the many cases in which he has acted. (The Courts Service, likewise.) Also perhaps of interest is that he is listed as a supporter of Ivana Bacik's campaign for the Seanad.

Garrett Sheehan, solicitor, is described by The Irish Times as having “one of the biggest criminal law defence practices in the country.” A graduate of Michael McDowell's alma mater Gonzaga Colege in 1964, where he was a classmate of Peter Sutherland, Mr Sheehan has been a qualified solicitor for 38 years. Sutherland, a friend of 50 years' standing describes him as "a real champion for justice and the less fortunate." Fr Peter McVerry has been equally complimentary. His firm, Garrett Sheehan & Co. solicitors, has been described as "a leading firm of solicitors in the area of Criminal Law". Following a trail blazed by Mr Justice Michael Peart, Mr Sheehan is only the second solicitor to be directly appointed to the High Court.

Circuit judge Bryan McMahon (well known to law students of the last quarter-century as author of the leading textbook on the law of torts) is promoted to the High Court. A Listowel man and the son of the writer of the same name, Judge McMahon is also chairman of the Abbey Theatre and of the National Archives Advisory Council, as well as holding an adjunct professorship at University College Cork. Indeed, as he recalled in a 2000 speech to law and commerce graduates, Judge McMahon has a long connecton with UCC. An Irish Independent article described him as "an eminent jurist" and "clearly material that deserves a position on the Supreme Court." Before being a judge, he was a solicitor.

In addition, John Edwards SC, who (like George Birmingham) specialises in judicial review and criminal law (as well as arbitration and dispute resolution), joins the High Court bench. Cork-based senior counsel Patrick McCarthy and, last but by no means least, Mary Irvine SC (who becomes by my count the sixth female High Court judge in the history of the State), make up the High Court appointees. Mr McCarthy, who specialises in judicial review and criminal law (a pattern seems to be emerging), currently serves on the Bar Council. Ms Irvine has been a legal assessor for the Dail Public Accounts Committee. (In an interesting coincidence, the three senior counsel named as legal assessors at that link have all since been appointed to the High Court.)

The new appointments increase the number of High Court judges from 32 to 38.

Miss D v HSE, District Judge, Attorney General and Ireland and

The Irish Times reports that a 17 year-old girl has brought judicial review proceedings challenging a decision preventing her from travelling to England, where she intends to have an abortion. Counsel for the girl (who the court directed could be referred to as Miss D), told the court the case was very urgent. The "foetus suffers from anencephaly", which is "a head disorder resulting from a neural tube defect resulting in the absence of a major portion of the brain, skull and scalp." The child, when born, is not expected to live for more than three days. It appears that the HSE secured a care order over the child, and then decided that she should not be allowed leave the jurisdiction for the purpose of an abortion. The case was adjourned until today.

According to today's Irish Examiner, the case being made is that the travel restriction imposed by the HSE violates Miss D's constitutional rights to personal autonomy, bodily integrity and travel. The latter seems the most relevant ground. The 'right to travel' referred to was inserted into the Constitution on December 23rd 1992 by the Thirteenth Amendment, in the aftermath if Attorney General v X [1992] 1 I.R. 1, the X case. Article 40.3 provides as follows:

"1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state." (emphasis added to text of Thirteenth Amendment)

The so-called travel amendment was interpreted a decade ago in A. and B. v Eastern Health Board [1998] 1 I.L.R.M. 460. Like the X case, this involved a 13 year-old girl, C., who became pregnant as a result of rape. The District Court granted a temporary care order and then, on the application of the Health Board and having heard evidence from a psychiatrist that C would kill herself if she had the child, ordered that C be permitted travel outside the jurisdiction, in order to obtain an abortion. The child's parents challenged the latter order. This is what the High Court (Geoghegan J) had to say, as regards the application of the Thirteenth Amendment:

"25. This amendment is framed in negative terms and must, in my view, be interpreted in the historical context in which it was inserted. There was, I think, a widespread feeling in the country that a repetition of The Attorney General v. X [1992] 1 I.R. 1, should not occur in that nobody should be injuncted from actually travelling out of the country for the purpose of an abortion. It must be remembered that three out of the five judges of the Supreme Court took the view that in an appropriate case a travel injunction could be granted. It was in that context, therefore that the amendment was made and I do not think it was ever intended to give some new substantial right. Rather, it was intended to prevent injunctions against travel or having an abortion abroad. A court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must, I believe, be confined to considering the grounds for termination which would be lawful under the Irish Constitution and cannot make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose. I think that the view which I have taken conforms with the view of the Supreme Court in the Article 26 reference relating to the Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1 and as expressed in the judgment of the Court at p. 47. The Court says the following:-
“As already stated, the effect of the decision of this Court and the judgments of the majority of the Court in The Attorney General v. X [1992] 1 I.R. 1 was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother’s pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40.3.3° of the Constitution. The position as therein set forth is unaltered by either the provisions of the Thirteenth or Fourteenth Amendment to the Constitution or of the Bill.”"

Geoghegan J thus denied the relief sought by the parents, only because the abortion would be permissible under the Irish Constitution. He made clear, however, that he "would have taken a different view and would have granted the order if contrary to my view on a true analysis the effect of the order is to authorise an abortion outside Ireland of a kind which would not be in conformity with the Irish Constitution."

The High Court usually follows its own precedents, so, on the assumption that the judge hearing today's case view A and B as controlling his decision, then it would seem that counsel for Miss D will have to argue that the Constitution permits abortion in the circumstances of her case. The X and A and B cases both involved girls presenting as suicide risks. It was held in X that abortion was permissible under Article 40.3.3 where the life, as opposed to the health, of the mother is threatened by the pregnancy being allowed to continue. There is no such evidence (from what I can gather so far) in the present case. If an appeal were to be brought to the Supreme Court (of which Geoghegan J is incidentally now a member), then the decision in A and B, interpreting the Constitution as only permitting a court to order that a child be allowed to travel for the purpose of an abortion where that same abortion would be lawful in this State too, would have less certain application. The Supreme Court would have the option of saying that A and B was wrongly decided and that Article 40.3.3 should not be read in that way. It is interesting that, even if A and B were overruled in the present case, the result in each case would be the same: Let her go to England. In A and B the court refused to quash an order that the girl be allowed travel abroad for an abortion; in Miss D, the Supreme Court (if an appeal is brought and if it were to so decide) would quash an order refusing to allow the girl to travel abroad for a jurisdiction.

Update 1 (12.57 pm):
Dearbhail McDonald, legal affairs correspondent with The Irish Independent, notes that last year the European Court of Human Rights rejected an Irish woman's claim that her human rights were violated due to the non-availability in Ireland of abortion in circumstances of foetal abnormality, on the grounds that the issue had not been brought before the Irish courts.

Dr Muiris Houston writes in today's Irish Times that:

"Anencephaly, meaning the absence of the greater part of the brain and of the skull bones, is an example of a neural tube defect (NTD). Other NTDs include spina bifida, where part of the spinal cord protrudes through an unfused vertebrae and cephalocoele, the protrusion of part of the brain through a bony defect in the skull. Open neural tube defects occur in two to five babies per 1,000 pregnancies. ... The neural tube, which develops into the brain and spinal cord, is usually completely formed and closed by the end of the third week of intrauterine life.Neural tube defects are the commonest form of congenital central nervous system malformations. In anencephaly, the most severe form of NTD, there are no cerebral hemispheres and no development of the vault in which the brain resides. The condition is uniformly fatal; many children with the condition are stillborn, but if born alive the baby usually dies within hours."

Update 2 (1.25 pm)
The High Court (McKechnie J) has granted Miss D leave to bring judicial review proceedings. The case will be heard on Thursday. Counsel for the Attorney General appears to have submitted that the HSE does not have the legal power to direct Gardai to restrain a person who is the subject of an interim care order.