Noel Whelan: Fianna Fáil are wrong on water charges

The Government has always had reason to beware the Ides of this March. It was inevitable that the issue of water charges would re-emerge to endanger its survival in the coming weeks.

In May last year Fianna Fáil and Fine Gael negotiators, having spent weeks in talks, first in Government Buildings and then at Trinity College, emerged waving a confidence and supply agreement and promising enough political peace in our time to allow the Fine Gael minority Government to last for at least three years.

Now barely 10 months on, the latest issue to threaten the collapse of that agreement is water charges.

Last year the Fine Gael and Fianna Fáil negotiators were unable to agree a position on how the matter of water charges would be addressed. So instead they agreed a process. This involved the prompt introduction of legislation to suspend water charges until April this year. It further proposed that an independent commission and then a Dáil committee would deliberate and make recommendations which would then be voted on by the Dáil itself before the end of this month.

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The confidence and supply agreement is a very short document. It runs to just under 1,900 words. Most of it is a statement of generalised principle. The only issue it goes into detail on was this process for delaying and then dealing with water charges. Indeed, a third of the document is given over to setting out the process.

One paragraph is now of particular importance. In it the parties agreed that: "The government will facilitate the passage of legislation (whether it be a money bill or otherwise) for the implementation of the recommendations in relation to domestic water charging supported by the Oireachtas (including abolition, a reformed charging regime or other options)."

What is not dealt with in the agreement however, and it seems was not dealt with in the negotiations, was whether the new legislation that might emerge from the process would be compliant with the relevant European directives.

Since we passed a constitutional amendment to enter the Common Market in 1973 our constitution requires that Irish laws comply with our obligations under European law.

Fine Gael argues that in order to comply with European law, and avoid hundreds of millions of euros in fines, we must at a minimum provide for a charge on the excessive use of water. The independent commission report published in December also recommended a charge for excessive water use and appeared to accept this was necessary to comply with European law.

Excessive use

Sinn Féin, the AAA-PBP and left-of-centre Independent deputies oppose even a charge for excessive water use. This is mainly because they see it as a means by which domestic water charges could later be reintroduced by the back door. Fianna Fáil has shifted its position repeatedly over the last seven years and is now also opposed even to charges for excessive use. They dispute that such excessive use is a problem and suggest that a so far unused (and in my view unworkable) provision in a 2007 Act under which people could be prosecuted in the District Court is a better way to police and discourage excessive use.

The Dáil is not free to do as it chooses

On Wednesday in an interview on RTÉ radio with Seán O'Rourke, Fianna Fáil spokesman Barry Cowen argued that if Fine Gael felt the Attorney General was going to advise against abolition of all water charges then Simon Coveney should have put a caveat into the confidence and supply agreement saying the obligation on the Government to facilitate the new legislation would be subject to legal advice.

O’Rourke replied that it goes without saying a Minister cannot propose legislation that is unconstitutional.

It seems, however, that it does need to be said again. It is necessary to remind our politicians of the provisions of Article 15.4.1 of the Constitution, which states “The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.”

Constitutional norm

It follows logically that the Government cannot knowingly propose legislation that is unconstitutional. A long-established constitutional norm is that the Government must follow the Attorney General's advice on constitutionality. While some of our current Ministers, such as Shane Ross, and John Halligan, disregard these constitutional requirements, Coveney, to his credit, is not prepared to do so.

Cowen and others point of course to the fact that there is a large majority in the Dáil opposed to water charges. Their catch cry is that "the will of the Dáil is the will of the people". So too was the election of Donald Trump but even he, thank God, is subject to the rule of law. The Dáil is not free to do as it chooses. Its power is restricted by our codified constitution and therein by the constraints of European law.