Noel Whelan: Water charges tossed back to politicians

This week's Report of the Expert Commission on Domestic Water Services is short – just 63 pages, most of them taken up with a history of key events, a summary of submissions from the public, and a lengthy series of appendices.

The report’s actual analysis, discussion and recommendations run to just about 25 pages.

It is, in effect, a camel of a report. It reads more like the tortured outcome of a mediation process rather than a comprehensive expert study.

The items on which it comes closest to clarity is the core recommendation that water charges should effectively be abolished, and that the cost of overhauling water and waste infrastructure should be paid for out of taxation. However, the report offers no view on what form that taxation should take.

Fr Dougal

In a passage that echoes of Fr Dougal, the experts say the question of whether it should be “a dedicated tax, a broadly-based fiscal instrument [whatever that means] , or an adjustment to existing taxes to fund this requirement would be a matter of budgetary policy”.

The experts claim that what they are proposing is somehow different from the idea of a free-water allowance, originally envisaged by then minister Phil Hogan. The report says that water for normal personal and domestic use should not be charged for, but that "excessive or wasteful use of water should be paid for directly by the user".

The level at which water usage would be excessive or wasteful, or the rate at which it should then be it charged for, is not specified. The experts say this should be determined in due course by the Commission for Energy Regulation.

The report goes on to say that some people should get an extra free allowance of water. Again, the question of who should get this allowance, how much it should be, and the needs or criteria it should be granted on the basis of is not specified. It merely says “special provision” should be made for those with what it calls “special medical or other needs”. Even “other” is not defined.

The experts’ view is that they could offer no view on whether the installation of water metering should be finalised. They merely say that “the question of whether to continue the metering programme is one of policy and is outside the Expert Commission’s terms of reference”.

It is not at all clear from the report how water usage could be identified as excessive or wasteful if it is not metered.

On another issue, the experts conclude that "there was no evidence available that any party is in favour of privatisation of Irish Water now or in the future". It even states that, even though unfounded concerns about privatisation "contributed to the creation of a climate of uncertainty and mistrust and represents a barrier to making progress".

So, “as part of a process of settling the water issue”, the experts recommend what in effect would be a reassurance referendum to amend the Constitution to prohibit the privatisation of water supply.

They don't address the complexities of drafting such a referendum. They merely say that "the adoption of a suitable constitutional provision on public ownership of water services be more fully addressed by the Special Oireachtas Committee, as part of its deliberations".

Thorny issues, such as how the referendum wording would avoid making rural group water schemes unconstitutional, are left for others.

One of the most peculiar sections of the report is the experts’ assessment of their task in the context of relevant European law and, in particular, the Water Framework Directive.

The experts wrote to the European Commission for its view, and the reply is an appendix to the report. In the report itself, however, they chose to disregard the commission’s view, offering the trite observation that, only the European Court could give a definitive interpretation of the relevant law.

Unsatisfactory

Then, in a strange piece of legal analysis, the report states: “While the expert commission cannot purport to offer an authoritative opining on questions of European law we are satisfied that it can cogently be argued that its recommendations will achieve the objective pursued by” the Water Framework Directive.

The fact that this report is unsatisfactory is not because its experts lacked expertise, but because they were given an impossible task.

The terms of reference and the tight delivery timeframe were driven by political imperatives and set during the long, drawn-out government negotiations between Fine Gael and Fianna Fáil. The commission met just 10 times.

As a result, the report raises more questions than answers. Water hasn’t gone away as a potent political issue. It now falls – again – to the politicians rather than the experts to resolve it.