Eddie Hobbs: Constitutional betrayal of our right to water

Water, as well as the nation’s other resources, ‘belong to the State’ as stated in the 1937 Constitution, but Article 10 needs to be rewritten, writes Eddie Hobbs

Today’s water protesters, whether they realise it yet or not, campaign on a fissure between the Irish people and the State, which, left unaddressed, will keep recurring until the issue of who owns our natural resources is properly addressed by constitutional amendment, anything short of which is merely tinkering with the symptoms of a carefully-laid flaw.

In the1930s, Europe was grappling with the destruction of imperial empires after the First World War. Fearful of socialism, it venerated the state and its new strong leaders, breeding, at the extreme, a new kind of government –authoritarian and all-knowing. Invoking the primacy of the state, fascism took a grip on Germany and Italy, while clerical fascism also gripped Spain, as observed by Eamon de Valera, influencing the writing of the 1937 Constitution which he supervised.

This may partially explain why the Irish people have been alienated by the State from their own natural resources, including oil, gas, minerals, forests, fisheries, and water. Today, they enjoy fewer rights to natural resources than under Britain’s monarchy. Strolling through the Constitution is something few of us do – which is why part of it is reproduced below – but, set against the backdrop of the abject failure of the State to act in the common good on the issue of water and public fears about potential privatisation, Article 10 will bring you to a shuddering halt at the words “belong to the State”.

Unlike many European countries, Ireland took explicit ownership of natural resources in its Constitution. While the Constitution recites its role in acting in the common good, the State reinforced its hegemony by ensuring that these principles of law, including the alienation of the people from their natural resource endowment, cannot be actionable through the courts under Article 45, which leaves the people marooned by the State when, acting as trustee, it fails in its duty of care.

Had this flaw not been engineered, today’s water protesters could be fighting through the courts and not in the streets for what the UN General Assembly in 2010 declared to be a human right: “The right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.”

Ireland abstained from the vote on the UN declaration.

We could also be holding our Government to account for its reckless policy in handing ownership of large tracts of offshore territory to private oil and gas explorers. We are told our water will not be privatised. You can be sure that’s true. For the time being, no sane private company would want to take it on. But the State, trading at the extreme edges of debt servicing, will sell the family silver to preserve itself first and look after anything else second .

There is only one way to protect the Irish people from the incompetence, callowness, and self-preservation that is second nature to our political leaders and that is to amend the Constitution, not just for water but for all our natural resources. This means overturning Article 10, placing unfettered ownership with the people and trusteeship with the State, reducing it to acting as a fiduciary, not as the owner. The State’s behaviour in such a role could then be actionable through the courts.

Amending the Constitution at any level ought to be done carefully, consulting widely and involving constitutional lawyers to properly address requirements for balance on the question of sustainability for future generations, to allow for temporary leasing to private interests while retaining ownership, and to impose a responsibility to use the resource efficiently.

But the State will not accept diminishing its grip lightly — not without challenge. That challenge has manifestly arrived with the water protests. What is required now is a redirection of the debate towards revisiting the 1937 Constitution, recognising that the fundamental issue here is not about pricing water for the next few years but about the imbalance of power as between the people and the State on the question of Irish natural resources. That means digging under the foundations of State power. That is where we are compelled to excavate, recognising that Irish natural resources could, in a few decades, become the defining intersection in our relationship with the outside world, especially with the EU to whom we have already given up so much.

ARTICLE 10

1: All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.

2: All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into operation of this Constitution belong to the State to the same extent as they then belonged to Saorstát Éireann.

3: Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property.

4: Provision may also be made by law for the management of land, mines, minerals and waters acquired by the State after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land, mines, minerals and waters so acquired

ARTICLE 45

The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.

Eddie Hobbs provides advice on diversified global investment strategies as managing director of Financial Development and Marketing Ltd


Lifestyle

Mind matters: DJs band together for a tribute to The Prodigy's Keith Flint

More From The Irish Examiner