Response to NTA consultation on gradual opening of competition in bus markets from 2016

Sirs/madams,
I support the gradual approach to competitive tendering that the NTA is proposing. Time is needed to allow the state operators to adjust and downsize their operations as a more competitive market emerges -but of course, we must make a start somewhere and the sooner the better.

However, I think the current proposal lacks a means to continue the current advantage of allowing profitable routes subsidise PSO routes. At present, PSO routes are subsidised by subvention, but also by cross-subsidisation from profitable routes. The funding model for PSO routes at present is not replicated in these 2 proposals which simply propose to put a portion of less profitable routes out to tender, without cross-subsidisation from the profitable routes. The result could be higher subvention to make the PSO routes viable. It would also leave the state operators with a more profitable basket of routes.

Therefore, I think that we must consider levying the profitable routes in order to supplement subvention. In particular, imposing a levy from 2016 when the transition occurs. Otherwise, we will be asking bidders to provide the PSO routes with only part of the financial support the PSO routes enjoy at present. This could result in a poorly subscribed tendering process robbing the whole project of credibility.

Eventually we need to arrive at a system where profitable routes are auctioned and the proceeds used to boost subvention of unprofitable routes.

Secondly, the use of fixed assets -stops, stations and depots, needs to be guaranteed to all. There would be no advantage of having new contractors replicating existing infrastructure. A reasonable contribution towards the maintenance and use of these facilities needs to be part of the tendering process. More importantly, sharing of these services with the private operators needs to be part of the renewed contract signed by the state operators.
sincerely

Letter to the Taoiseach on Seanad reform

Dear Taoiseach,
I am writing to you about the recently defeated referendum.

Firstly, I was incredibly disappointed with the outcome of the vote, and I cannot believe the electorate has voted to keep this purposeless, undemocratic second-house. I offer my genuine sympathy, as I know that this was a difficult bill to pass through the houses and would never have gone before the people without your personal commitment, even when it was against your own personal interests.

Specifically, I am writing to you about reform of the Seanad. There will be many calls for reform of the Seanad in coming months. Doubtless something will have to be done, but I want to urge extreme caution about reforming it. No reform is better than the wrong reform. In particular, I would be highly sceptical about reforming the Seanad to any variant of a direct election model, as I believe that would give rise to conflict between the 2 chambers and could be a significant impediment to future decisionmaking. If we look at examples of parliaments with 2 directly elected chambers, there is a real danger for political deadlock between them -The United States and Italy are only 2 prime examples.

One thing that our present constitution has is a single powerful voice -that of the Dail- and giving the Seanad equal status (which would inevitably follow from direct elections) would split that voice and could only be an advantage to obstructionists to all future legislative reform measures. It would simultaneously double the obstacles to future reform measures too. Controversial bills would never pass.

I recognise that you must do something though, partly because there will be demands for it, and partly because the Seanad as it stands is so repulsive to democracy. But I urge you to be very careful not to deliver us to a situation of political gridlock between the 2 houses.

I would propose the following scheme as being moderately reformist and politically defensible, without permitting the Seanad to challenge the democratic voice of the Dail:
-introduce a rule that noone who has ever sat in the Dail can stand for election to the Seanad.
-extend the university elections to all graduates.
-introduce a gender quota for the Seanad.

This would go someway to making the Seanad less of a political parking space for TDs that have been ousted by the electorate. However, I wouldn't obstruct young aspiring politicians to have a term in the Seanad as I don't think it's entirely useless for them to learn something of parliamentary process. This would be especially the case if there was a gender quota, which could eventually lead to a more gender balanced selection of serious Dail candidates. Extending the vote to all graduates is simply reflecting popular demand, though personally, I find it repulsive that anyone should have a second vote simply because they are educated. However, it seems realistically unavoidable.

More importantly, this scheme would reduce the misuse of the seanad by political parties without creating a schizophrenic parliament with 2 authorative voices (like Italy's). That must be prevented at all costs.

sincerely

Reforming the Seanad will require a more informed debate than the referendum to abolish it has shown

It is now official that the referendum to abolish the Seanad has been defeated. Though regrettable, it always seemed unlikely that the people would vote to abolish an institution about which most of them have very little information or experience -caution won out.

The question being decided, the debate will now move on to reform. But reforming the Seanad will be a far riskier business than most imagine. Who will be represented in a reformed Seanad and what power should it have to oppose the Dail?

The debate on the referendum was dogged by big promises for what a reformed Seanad will do. Much of this was based on the idea of improved scrutiny and a wider base from which to suggest changes to legislation and decisions.

But this is based on a misconception of what a parliament does. A parliament is not a think-tank, or an arena for deliberation: it's role is to make decisions. There is never a shortage of people -both inside and outside of Parliament- to scrutinise legislation and suggest changes. In almost all cases, there is in fact an overload of ideas and possible actions. The role of the parliament therefore is not to generate ideas for action or to particularly scrutinise the fine details of a proposal (that is done by a much wider portion of society), but to decide a single course of action from the raft of possibilities that are usually served up as a bill passes through it.

This key point was entirely absent in all discussions of retaining and reforming the Seanad -and it created the false impression that somehow legislation will be additionally scrutinised for being read a second time. In reality, as a bill passes through a second chamber, the same raft of options is presented again in a mildly different packaging. The society that lobbied the first house simply lobbies the second house again in mirror fashion. The second chamber therefore does not bring anything new to the proposal, but that is not its role, its role is to represent the interests of whoever appointed it and give them a veto over legislative reform measures.

So why do so many countries have second chambers if their only effect is to hamper decisionmaking? In many countries there are interests to take into account other than the people. In Germany and the USA, there are powerful constituent states, historically in Britain there was the aristocracy, in the early days of this State there was the protestant minority who felt threatened by what they perceived as a catholic Dail. In these and many other examples, the indecision created by a second chamber is tolerated -because the interests of those powerful other actors are too important to ignore and a second chamber grants them a veto over the decisions made by the people's representatives in the first chamber. Furthermore, those interests are not institutionally opposed to reform unless it impacts directly on their interests.

Modern Ireland is a unitary state, with one identity and no significant interest to protect -other than that of the people themselves. Therefore a reformed Seanad can only respectably answer directly to the people, operating as another Dail. There are countries that have 2 chambers directly elected by the people. These are few and their political performance is generally poor. It is not a secret that Italian governments struggle to pass any reforms, because the effort needed to win a democratic vote in 2 houses on a controversial issue is too difficult. Furthermore, 2 electoral cycles mean they are permanently on an election campaign footing. One house effectively stymies the reforming efforts of the other and a state of political gridlock and unstable governments is the outcome. This problem is also visible to a lesser extent in the United States, where the Senate used to be largely appointed by state governors or legislatures -but is now elected by state electorates. The members of each house now get political rewards for opposing the other house. Is this more democratic? Arguably no -representative democracy should mean that the peoples representatives make decisions, but it is difficult to see how democracy is advanced by then having the people's other representatives opposing that decision. The obstacles to reform are doubled and the opportunities for obstructionists are also.

DeValera, in writing our constitution, understood the value of having a single decisive voice for a single people. He purposefully made the Seanad structurally weak so that it could not oppose decisions of the Dail -while still allowing him to give purely political reassurance to the protestant minority that they would have an additional voice in parliament. An authorative second chamber was an unnecessary obstacle to decisionmaking, so he wisely sabotaged the Seanad from becoming a real political voice. Because of this arrangement, our democracy has never suffered from an inability to make decisions -including tough decisions.

Most of the reform proposals that are circulating at present are based on the idea of giving the people direct control over the Seanad -to second guess decisions of the Dail. But of course this ignores the fact that the Dail itself is under the control of the people. If such reforms were approved, the people's voice would be heard in parliament, but from 2 sources -and both houses would have a political incentive to visibly oppose the other house. This would be a disaster for Irish democracy. 2 directly elected houses with every incentive to oppose each other and presenting a double challenge to any government trying to heave controversial motions through -would spell endless political gridlock and undermine the central decisionmaking role of parliament. There would be no additional representation -only less (possibly much less) decisionmaking capacity.

In summary, this writer thinks that now abolition has been rejected, it is best that the Seanad be left unreformed. In particular, directly electing the Seanad in a vocational panel system (as proposed in a recent bill) is a bad idea. The people already have a voice in parliament, giving them another and splitting the democratic voice will only create indecision (possibly paralysis) without serving any additional legitimate interest. Whatever happens next, it is important that parliament retains the ability to decide things -instead of becoming trapped in a tit for tat between 2 equally authorative houses. The debate about the future of the Seanad must be refocused away from the naive idea of our parliamentary chambers operating as grandiose brainstorming sessions or proofreading exercises, rather we must start by addressing ourselves to their actual role -deciding on ideas. We also need to remember that giving more power to the second chamber will inevitably reduce the ability of the parliament to make these decisions.

Vote Yes to abolish the Seanad

Every single Seanad reform proposal I have seen lately (and there have been quite a few), revolves around giving educated people more power over politics than the average citizen. The starting point is always that there should be lawyers and engineers and business people and people who have run big organisations and doctors etc., and that these people need to be in Government because of their elite skills.


But I ask myself why? Why should the educated have more authority than the ordinary? Assuming for a moment that they will be more competent to govern (which I doubt), what gives them the right to more power? Is it more important that a government is packed with experts or that it is accountable to the people -all of the people equally.


To me, the most incompetent democratic government is better than an unfairly elected government dream-team. Reforming the seanad therefore is a wasted effort in my eyes. A reformed seanad will either be democratic (and therefore a useless replica of the Dáil) or else it will be undemocratic and have the same elitist bias that the present one has (which I find objectionable in a Republic where we are technically supposed to be born equal).


Pointing to other countries is foolish, given that few other countries can be considered models to follow. The House of Lords is hardly an ornament of expertise or democracy. Most of the other bicameral parliaments are federal and have real interests to represent in a second house.


Therefore, to me, democracy and the seanad are at loggerheads. The Seanad's existence until now was only tolerable because it was powerless -but that hardly justifies maintaining it. The seanad today is at best useless -at worst elitist. Reforms can make it more or less elitist, but not fair. Abolition of this elitist institution is the only fair thing to do. Vote Yes.

Select Committee amendments to the Legal Services Regulation Bill 2011

Previously, I wrote about the Legal Services Regulation Bill 2011. I mentioned 3 misgivings I had with the text of the Bill and wrote the Minister with these concerns. see http://outside-of-the-walls.blogspot.ie/2011/12/letter-to-sundry-tds-about-legal.html

Happily, he seems to have listened and the amendment list published today deals reasonably well with one of my misgivings and decisively with the other. see http://www.oireachtas.ie/documents/bills28/bills/2011/5811/b5811d-dscn.pdf

Amendment 29 on this list deals with my main problem -the wording requiring the new Authority to merely keep legal education under review. Amendment 29 extends this to allow the Authority make proposals to the Minister also. While this is far more conservative than what I personally wanted to see, nevertheless it improves the bill considerably. It still falls short of what is in the explanatory memorandum and troika commitments: In particular, commitments to open up legal training to competition. However, it will create a foundation for such liberalisation at a later date, once the Authority is established.

Amendment 7 follows my advice for dispersing the power of appointing lay members to independent bodies seperate from the Govt. I think this is also an improvement.

Overall, I am quite happy with the list of amendments published. I think it will make the bill much better and addressess my 2 greatest concerns with it. These amendments deserve to be carried and the Bill to pass in its present form -however, I would still like to see a much more robust approach taken to the liberalisation of training places. An inexplicable monopoly.

Further correspondence with Coillte about Sralagagh

I have just sent the following letter to Coillte in response to correspondence from them received this week. My response and their letter pasted below.

XXXXXXXXXX,
Litigation Manager, Coillte.

Dear XXXXXXXX,

Thank you for your recent letter in response to previous correspondence.

I interpret your quotation of the definition of “Occupier” as meaning that you do not see Coillte as falling within this definition (please correct me if this is wrong, it is not completely clear from the previous letter).

However, I do not understand how you can think this. Clearly, as the landowner, Coillte exercises control over the lands. Turbary right holders have a right of access and a right to take mud –but that is all. They cannot buy or sell the land, deny entry, alter it beyond their specific rights etc. They are not leaseholders and have no control over the land. Indeed, your suggestion in the same letter that Coillte permit turfcutters to carry out the repairs only illustrates the control that Coillte retains over this land –and the consequent liability it retains also. I do not know how the Act could be interpreted differently.

Furthermore, without conceding that turbary rights amount to exercising control over the lands, I would also point out that the road is not subject to turbary rights anyway and passes between the plots unburdened. The only attachment of the turfcutters to this road is a right of way.

It seems obvious that Coillte is the sole occupier, turfcutters are mere visitors (entrants as of right) and section 3 of the Act places the burden on Coillte to make the lands safe for visitors and other entrants. Coillte has been in breach of section 3 since last Autumn.

I will not address your point that Coillte does not use this road –that is beside the point.

I am disappointed by Coillte’s reckless disregard for the danger to entrants at this location. I would not expect my neighbour to leave a roadway in such a dangerous condition –let alone a semi-state company.

However, I can see that this is useless. For whatever reason, Coillte is happy to leave the road in a dangerous condition, and no one else can sensibly repair the road without incurring liability themself. Preventable accidents will follow, hopefully not serious ones.

I will be making this correspondence available to whoever has the misfortune to have an accident at this spot so they can demonstrate that Coillte was made aware of the danger in ample time.

Thank you for your time, I only regret that we could not reach a more fitting resolution.

Sincerely

==============================

5^th July 2013

 

 

XXXXXXXXXXXXXXXXXXXXX

 

 

 

Re: Lands at Sralagagh, Ballycastle, Co. Mayo

 

 

Dear XXXXXXXXXXXXXXXXXXXXXXXXXXx,

 

I refer to previous correspondence with yourself and others, including An Taoiseach’s office and Michael Ring TD, Minister of State for Tourism and Sport.  The road you refer to is, as you state, a bog road used by turbary rights holders for bog cutting.  It appears it is a former Land Commission road which was in existence when Coillte or its predecessor in title acquired the lands.  Coillte has never used this road and has no requirement to do so in future. It is, as per your map, firmly within the turbary plots and is used for access to same by the rights holders. Coillte recognise that you and others have a right over same and have no objection to the users of the route maintaining and repairing it for their purposes and in accordance with the rights held.

 

With regard to your reference to the Occupiers Liability Act please note that the definition of “occupier” therein is as follows:

 

“occupier”, in relation to any premises, means a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser;

 

 

 

Yours sincerely,

 

 

 

 

 

_________________________

XXXXXXXXXX

Litigation Manager

Letter to CEO of Coillte as frustration with the organisation mounts

Dear David,
I am writing to you in relation to lands owned by Coillte in Sralagagh, Ballycastle, Co. Mayo. Part of this land is burdened by a right of way and turbary rights owned by a large number of individuals. Turfcutting is very active on these lands.

The lands are accessed by 2 roads which were built in the 1940s and most of which has not received any maintenance in living memory -probably not since they were built.

However, one of the roads has developed a problem at a small bridge. This bridge started to collapse last year and has since been totally washed away. The gap in the road is being filled in by people to maintain the right of way, but the crossing is very dangerous as it brings the driver (including quite a lot of heavy machinery) past a sharp drop of about 12 foot on an unsuitable base of sponge. It is also being washed away at every rainfall.

I urge you to take action to make this bridge safe for traffic. Apart from upholding the right of way that burdens the land, I would also point to the Occupier's Liability Acts which require all landowners to keep their lands in a safe condition. I would also point out that the cost of fixing this bridge is quite small (in the hundreds, not the thousands), it only needs a new pipe, some filling material, and a bit of cased concrete on the side with the big fall. The cost of this repair is miniscule when you consider the risk to human life that its current state presents.

I do not wish to conduct the repairs myself (as suggested by one of your staff to our local TD) as I do not want to take the responsibility/liability for this problem onto myself. That should rightly belong to the landowner.

I have been corresponding with your litigation section on this matter since February, however they do not seem to appreciate the urgency of it, and especially the risk to human life. In the last 5 months, I have written twice to them myself and also I know a local TD has written at least twice to them urging them to respond to me -all I have received in response to this is a holding letter. I feel we are getting nowhere and are drifting towards an inevitable disaster.

Please, I ask you to speak with your staff on this matter, and impress upon them that action is needed on this soon. Fully loaded trailers will be crossing this bridge within weeks. This matter should have been wrapped up in the early spring, but is being allowed to drift indefinitely.
sincerely