Mick Clifford: Rushing through complex legislation is a cynical move used by populist governments

The Government's bid to ram through 48 pages of amendments to a 20-page planning bill is straight out of the populist playbook it claims to oppose

Housing Minister Darragh O'Brien: The approach being adopted by Government is straight out of the populist playbook they claim to oppose. Picture: Brian Lawless/PA 

THE Government did its bit for populism this week. Figures from the two bigger parties in Government frequently decry the rise of populism, particularly the tenet thereof that infers there are easy solutions to intractable problems.

However, nobody in Fianna Fáil or Fine Gael ever acknowledges that populism, as it is currently evolving, is a product of misrule by establishment parties. Another example of that misrule was in evidence this week.

Planning legislation has become highly complex and technical, over recent decades. Holes are repeatedly picked in laws, especially by judges ruling on challenges brought against planning decisions.

This prevailing culture should ensure that new laws are drafted and legislated for with the utmost care. After all, getting it wrong when shaping the law will inevitably lead to greater cost, delays, and quite often the requirement to come back to the Oireachtas to do it all again.

In 2018, then chief justice Frank Clarke touched on this, calling for clearer legislation in planning, particularly in relation to the environment.

“There will continue to be projects which, even though they may successfully clear all hurdles at the end of the day, may suffer by being held up for too long.”

Never is such sentiment more relevant than in the middle of a housing crisiswhere there is an urgent need to get homes built.

Despite that, Darragh O’Brien, the housing minister, couldn’t help himself in attempting to ram through planning legislation this week without proper, or even any, scrutiny.

Last Thursday evening, opposition politicians were given details of 48 pages of amendments to be added to a 20-page planning bill going through the Oireachtas.

Two-and-a-half hours have been set aside on Wednesday to debate these amendments along with amendments from the original bill. It will be impossible for proper scrutiny to be applied in the Dáil in that kind of timeframe.

If all of the amendments were uncontroversial that might be acceptable, but some deal with access to the courts and how bodies such as An Bord Pleanála can adjust rulings effectively in the middle of a legal challenge.

These issues go to the heart of the EU’s Aarhus Convention, which determined that the public has a right to be fully engaged in the planning process.

Moving the goalposts

Solicitor Fred Logue says the proposed amendments in relation to a planning authority being allowed to change its ruling mid-stream in a legal challenge is effectively moving the goalposts.

“Under Aarhus, the system has to be fair, equitable, and not prohibitively expensive,” he says. “It’s basically unfair if you spend money on a judicial review and then the goalposts are moved and you’re left challenging a fundamentally different decision. And there is no procedure in how this is done.”

A spokesperson for the department said that it had been working in conjunction with the Attorney General (AG) on the amendments since last year but it was not possible to finalise the schedule until now.

Sinn Féin housing spokesman Eoin Ó Broin points out that there is no urgency with these amendments and therefore no valid reason to rush them through the Oireachtas.

“There is nothing ever simple or technical about changes in planning and they need to be thought through,” he says. 

I’m increasingly getting the impression that the AG is directly planning reform rather than the minister and I’m concerned about mission creep beyond his legal advice.

Ultimately, it is difficult to escape the conclusion that the amendments are being rushed through to avoid controversy, negative media coverage, and the requirement to actually explain what is at issue. The result is that the role of the Dáil is being completely undermined.

Yesterday, following pressure from various quarters and coverage of the issue in the Irish Examiner, the most contentious measure concerning legal challenges was withdrawn. Questions remain as to why it was proposed in the first place.

Notwithstanding that rethink, dozens of other amendments remain, which will not get the kind of scrutiny that would ensure the resulting law is robust and fair.

The approach being adopted by Government is straight out of the populist playbook they claim to oppose.

Populism offers a direct relationship between the strong leader or party and the people. Democratic institutions can be bypassed, as attempted by right-wing populists such as Donald Trump and Boris Johnson, who undermined the roles of elections and parliament respectively. 

The Government’s actions this week amount to undermining the Dáil’s function to scrutinise legislation and hold the Government to account in its lawmaking.

Not a one-off tactic

Unfortunately, this tactic is not a one-off. Last week, just two hours were allotted to debate over 100 amendments tabled in relation to the mica compensation scheme.

That scheme involves paying out at least €2.7bn of public money, yet the Government quite obviously calculated that proper scrutiny of the legislation — including the finding of any fault — would be sacrificed to avoid negative publicity that might attach to a debate. 

Instead, it was rammed through as if the Oireachtas had no more function than to watch and envy the executive executing its will.

In mid-June there was more of this kind of thing when the housing minister — again — published an amendment at the last minute that made provision for political parties to run super-draws.

This was brought in under the cover of an electoral reform bill and, once more, a couple of hours were set aside to debate it and 100 other late amendments.

This is not down to sloppy scheduling. Social Democrats housing spokesman Cian O’Callaghan pointed out this week that plenty of time had been given in the planning bill to amendments that were not controversial.

Ramming through the legislation only really applies when something awkward is involved.

Apart from anything else, conducting government business like this engenders cynicism among large sections of public. How can people trust the system if it is being abused in this manner? In whose interests is it being abused?

Cynicism begets the kind of populism now in vogue. If the establishment parties are holding the institutions of democracy in such contempt, how can they simultaneously accuse others of being intent on holding the institutions of democracy in contempt?

Meanwhile, there is the third stool to the governing coalition. The Green Party is in situ to pursue policies concerned with tackling climate change, an honourable and urgent pursuit. 

However, the apparent failure to intervene when a Fianna Fáil minister is rushing through legislation on planning is worrying. If this is a price for coalescing, perhaps they should check again what kind of bang they’re getting for their buck.