Parties have options to stem flow of Irish Water issues

The latest legal row over whether Irish Water charges can be scrapped has not, despite claims to the contrary, sunk any chance of resolving the issue.

Instead, it may have clarified the most likely solution to the utility and its bills which remain a key stumbling block to any Fine Gael-Fianna Fáil deal.

As reported by the Irish Examiner on March 4, cancelling charges would be illegal in the eyes of the European Commission as Ireland now has a fees ‘tradition’. However, Brussels may tolerate a deferral of the payment system.

Crucially, this would allow both parties to side-step the apparent legal block to cancelling charges while simultaneously saving face on key election promises, giving Enda Kenny and Micheál Martin ‘an out’ from an awkward corner into which they have been painted.

On Tuesday morning, it emerged that independent legal advice sought by Irish Water from senior counsel Garrett Simons and Michael M Collins had clearly ruled out any chance of scrapping water charges.

The reason outlined by the experts was that, under the EU’s Water Framework Directive, once a country has established a water charges system the fees cannot be cancelled without the country in question facing a multimillion-euro action in the European courts.

While article 9.4 of the document allows some countries to avoid a fees system if they have no “established practice” or charging system provision, the advice left no room for doubt in saying this loophole no longer exists here. The conclusion — which just happened to be leaked from Irish Water as the issue returned to the headlines — has caused yet another political row in the past 48 hours.

However, while the advice tallies exactly with the European Commission’s rules that water charges cannot be scrapped, officials have made it clear Brussels is open to looking at other options, such as deferring fees for a number of years.

Asked about this exact point by the Irish Examiner on March 4, commission officials said while such a scenario would lead to legal threats being exchanged formally between Brussels and Ireland, deferring charges on the strict condition that a new introduction date is adhered to could avoid any actual court case. It may not strictly comply with the legal rules, but, technically speaking, it also would not break them, officials have noted.

And, crucially, it would give Fine Gael and Fianna Fáil breathing space to come to an arrangement.

Taken in this context, the leaked Irish Water legal advice does not end the chances of finding a way out of the political mess. If anything, it underlines the clearest option if Fine Gael and Fianna Fáil are forced to do a deal.