What next — will the Government decide to ban elections altogether?

IT is hard to believe that anyone with any intelligence was surprised by the High Court ruling this week that the Donegal South-West by-election should be held without further delay. The existing delay, since the election of Pat ‘the Cope’ Gallagher to the European Parliament in June 2009, has been the longest in the history of the state.

Of course, the implications of the ruling clearly indicate that two of the other Dáil vacancies should also be filled because each of those has already been delayed for more than six months. The vacancy caused by the resignation of George Lee would be the fourth longest delay in history, if the by-election were called at this time.

Ironically, the third longest delay of 331 days was in the same constituency, following the death of Séamus Brennan, during the lifetime of this Dáil. The constituency has therefore been without one of its deputies for more than 600 days during the current Dáil. That is another national record.

No one should really be surprised if this Government should try to do away with elections for the next four years while they try to rectify the mess they have made of the economy. The utter contempt they have demonstrated for the precepts of democracy is equalled only by their sheer incompetence.

The Green party is quietly claiming credit for forcing Fianna Fáil to call the Donegal South-West by-election for November 25. But Fianna Fáil has been treating the Greens like a dog making use of an otherwise useless post.

This Government has achieved what many would have thought impossible. They have actually made Sinn Féin look positively democratic. Sinn Féin, which refused to recognise the courts throughout the bulk of the party’s history, actually went to the High Court to expose the patent contempt Fianna Fáil has been exhibiting for the democratic rights of the electorate in Donegal South-West.

Fianna Fáil and the Green party are already defying the implications of this week’s High Court ruling by prevaricating on the calling of the other by-elections. The Government has reportedly decided to appeal the High Court’s decision to the Supreme Court.

Is this to get the Supreme Court to rule that government has a right to refuse indefinitely to call by-elections to fill Dáil vacancies? How far is that from suggesting that government has the right not have to call any elections?

Only a total twit would believe that appealing to the Supreme Court is intended to demonstrate that the separation of powers means there is a constitutional prerogative preventing the judiciary from interfering with government in such matters. If that were so, the judiciary would have no right to declare any legislation unconstitutional, which is patently absurd.

By appealing to the Supreme Court in this instance the Government is just trying prevent anyone else from following Pearse Doherty’s example by taking a similar High Court case to force a by-election in any of the other three constituencies with vacancies. The Supreme Court case will be a waste of time and taxpayers’ money.

There is already evidence this week that the Government does not give a damn about wasting the court’s time, or the cost of frivolous litigation. Campus Stadium Ireland Development (CSID), the state company that controls the Aquatic Centre in Dublin, has finally admitted it will pay all the High Court and Supreme Court costs, along with the cost of arbitration incurred by Dublin Water World (DWW), arising out of the outrageous smearing of its directors for failing to pay €10.2m they never owed in VAT charges.

Directors of DWW were advised legally not to pay the VAT because it was not properly chargeable on the lease. They were in an impossible position. If they paid the VAT when it was not properly chargeable, they would not have been able to claim it back legally, whereas if they did owe it, they could claim it back. It was a crazy situation.

As early as September 30, 2004 the office of the Comptroller and Auditor General (C&AG) informed the Department of Arts, Sport and Tourism that if the VAT were owed, DWW would be able to reclaim it from the Revenue, so the whole thing was pointless.

“Ultimately, the recovery of VAT by CSID confers no benefit on the Exchequer,” the C&AG’s office warned. “Given that there is no benefit to be gained by the Exchequer the C&AG would recommend that the department consider whether it is appropriate that further costs be incurred by CSID in its efforts to recover the VAT.”

But the Department of Arts, Sport and Tourism ignored that advice, along with further advice from the office of the Attorney General, warning on November 17, 2004 that VAT was not due in the case, because the whole thing did “not pass the economic value test”. Anyway, if the VAT was owed, DWW could claim it back. “Therefore,” the Attorney General’s office noted, “there would not be any net benefit to the state.”

“It is regrettable that so much time and money has been expended by CSID on the issue and its highly-paid advisers did not display the lateral thinking of the C&AG,” the AG’s office continued. “Incurring further legal costs would be even more wasteful and in the circumstances its seems prudent and appropriate to accept the suggestion of the C&AG.”

However, the Department of Arts, Sports and Tourism ordered CSID to persist in being “even more wasteful.” When CSID called for arbitration, the directors of DWW were sure of their position, so they agreed. But in the subsequent opinion of the Supreme Court the arbitrator “gravely misled himself on the law,” and the High Court accepted his flawed decision.

EVEN if the directors of DWW had wished to settle at this stage, the Minister for Arts, Sport and Tourism, John O’Donoghue, “clearly indicated that there should be no settlement”, according to the department’s record of a meeting on March 29, 2006. “He also indicated that there should be no let-up in the attempt to recover the €10m VAT payment due to CSID.”

“In the event of an Appeal by DWW,” Minister of O’Donoghue insisted, “CSID should press on with the case, including obtaining security of cost for the appeal. He summarised by indicating that there should not be any compromise, settlement or appeasement and the case should ‘carry on to the end’.”

In April of this year the Supreme Court duly ruled that DWW did not owe the VAT, as the Attorney General’s office had warned more than five years earlier. The Supreme Court awarded DWW its High Court and Supreme Court costs, but CSID wanted to resubmit the whole thing to further arbitration, only to withdraw three months later. It is estimated that whole fiasco will ultimately cost more than €8m.

The affair highlights an irresponsibility that has become endemic within this Government, which is now planning a Supreme Court appeal in relation to by-elections. It should not need the High Court or the Supreme Court to tell the Government that it does not have a right to delay indefinitely people’s constitutional right to full representation in the Dáil. Anyone with a modicum of intelligence could tell them that.

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