ARTICLE PUBLISHED IN IRISH INDEPENDENT 29TH APRIL 2013

Introducing a law, that would say that a threat of suicide a ground for abortion, is not something that should be done under the pressure of artificial deadlines.

I know of no other area of law, where a threat of suicide is sufficient to make legal, what would otherwise be illegal. 

The notion that a simple threat of suicide would make right, something that would otherwise be wrong, is a really dangerous principle.

We must think long and hard about where it might lead.

We should also think carefully about the legitimating effect, that giving a threat of suicide  this sort of  high level statutory recognition, might have on attempts to reduce the incidence of suicide, or of threats of suicide. 

The abortion question boils down to whether one believes an unborn child is a separate human, with human rights of his/her own, or not. 

Some believe the unborn child is not a human with human rights, but just a part of the mother. If it is a part of the mother and not another life, then of course logically, the mother could make her own decisions. But the Irish constitution says something different.

The Irish people formally rejected that view when they decided in 1983 on an amendment to the constitution, now Article 40,(3)(3), which says that the unborn child has an “equal right to life” with its mother. This is being forgotten in some recent discussions.

The word “equal” is crucial here. A possibility is never equal to a certainty. The particular sentence in the constitution  would have made sense if the word “equal “ had not been put before “right to life”, but it WAS put in. That must be respected in any law the Dail may pass. 

In Article 40, the Irish constitution, in recognising his or her right to life, recognises the basic humanity of the unborn child, and grants the unborn child human and constitutional rights. 

Thus I believe that an unborn little girls life cannot, constitutionally, be taken away by a decision of 2,4,6 8, or any number of doctors, along with her mother, because the Irish people have said that she has rights of its own, separate from all of them.

At the very least, the unborn child, whose life may be about to be ended, must have separate representation in any process that might suppress her life. That should be a fundamental and uncontroversial legal principle.


Allowing medical certificates of suicidal intent to suffice to authorise the taking away the otherwise healthy life of an unborn child, would also be put great stress on the system of medical ethics. Medical certification is sometimes fallible, as we know in regard to the certification of illness for absence from work. 

The fact that leading psychiatrists are reluctant to be involved in certifying suicidal intent, in the context of ending the life of an unborn child, and the fact that many of them assert that abortion is never a cure for suicidal feelings, shows how impractical and mistaken was the original Supreme Court majority decision in the X case, in so far as it allowed suicide ideation on the part of a mother to override the equal right to life of an unborn child.

The only way out of the present dilemma is either

1.Address the medical decision making process relating to physical threats to the life of the mother, but  leave suicidal intent out as a ground for abortion, and let anyone, who wants to test the present constitutionality of this aspect of the X case ,  apply directly to the courts, or 

2. an option I do not favour, have a constitutional amendment to remove the equal right to life of the unborn from the constitution.

Some may argue against these options on the ground that the X case is settled law, and is thus is a reliable basis for proceeding with legislation to allow abortion where suicide is threatened. I believe this is wrong.

Irish constitutional law has changed considerably since 1992, when X was decided. There are two particularly relevant examples.

The first is the development by the Irish Courts of what is called the “proportionality test”. This test, first adopted by the High Court in 1994 (2 years after the X case), but now well entrenched, is used by the Courts when deciding cases, where there is a clash of rights. 

This test involves the Court in a much more searching examination of the evidence than happened  in the X case - when a majority of the Court agreed to the deliberate ending of an unborn life on the basis of a report by a single psychologist. Critically, the proportionality test requires someone, who is seeking to interfere with another individual’s rights, to prove that there is no other way of resolving the matter. 

If a new X case were to come up, the Court would be required by the proportionality test, to take account of the sort of evidence, heard by the Oireachtas Committee recently, to the effect  that there are plenty of other things that could be done to prevent a suicide in such a case. As a result of the improvements in legal procedure and in psychiatric medicine, I believe Courts would decide an X case differently today.

The second way in which things have changed since the X case, is the amendment made by the people in 2001,which is now Article 15 (4) of the constitution, which bans the state imposing a  penalty of death, in any circumstances.

This ban cannot even be suspended in an emergency like a war. This added constitutional commitment to the inviolability of every human life, because it was passed after the X case was decided, could not have taken into account then.  In a future case, all the different articles in the constitution would be interpreted together, and the argument would surely be advanced that it would be incongruous, constitutionally, to allow an unborn and innocent child, with explicit rights to life under Article 40, to be deprived of her life, while protecting, in every situation, the life of an adult who had committed a very serious crime . 

WHO ARE THE REAL WINNERS FROM COMPLEX FINANCIAL REGULATIONS?

WHY ARE MODERN BUSINESS REGULATIONS SO COMPLEX?

I believe that, across the western world, we may be reaching some sort of limit in the complexity of rules governing business. The response to the financial crisis has been ever more complex rules, that only a tiny number of professional advisors could ever hope to remember, or understand properly.

In the United States, the Glass Steagall Act, introduced to regulate banking after the Depression of the  1930’s ran to  37 pages .In contrast,  the Dodd Frank Act, introduced in the wake of the recent crisis, runs to  848 pages of basic text, plus 30000 pages of implementing rules.

In the UK, the 1979 banking act ran to 75 pages. The 2012 Financial Services act runs to 534pages.

It is the same with taxation. In 1997,Tolley’s  guide to the UK tax system had around 5000 pages. The latest edition has 17,795 pages.  I have no doubt the pattern in similar in other countries and in other areas of regulation.

Why is this happening?

I think the explanation is ethical, political, and legal.

Ethics may have declined in many organisations to a point that something  is  deemed acceptable so long as it is legal, even if it may be very unfair to customers, creditors or the taxpayer. This may be accompanied by other excuses like, “everyone else is doing it” or “we must do this to keep market share”.

In politics, the” gotcha” principle may be at work. No politician or administrator wants the buck to stop with them if something goes wrong. As a result, they make ever more complex rules to pass the responsibility on to some other body, preferably to an anonymous quango. 

Also businesses themselves lobby for “certainty” in legislation, which often involves more and more complex exceptions and qualifications.  

The ingenuity of lawyers in devising complex ways of getting around rules also drives rule makers to introduce new complexities to close loopholes.

Some of these new laws are so long that parts of them are never properly debated, or even understood, in parliaments.

A REGRESSIVE TAX

Complex rules are a sort of regressive tax.

They give an artificial advantage to those  who can hire  “ the most sophisticated risk modeller, the slickest tax accountant” as Andrew Haldane of the Bank of England pointed out in a speech earlier this month.

These complex rules carry huge economic costs. They divert talent, time and money away from productive activity, to activity that adds nothing to the competitiveness of our economies in international markets.

Andrew Haldane asked the question

“If complex frameworks come with economic and social costs-why has society not done more to tackle them? Resistance is strong, particularly among those who gain most from squeezing through the loopholes. There is also an inbuilt professional inertia among regulators, lawyers and tax accountants with large amounts of human capital invested in complexity”

Simplifying regulations must be part of any serious effort to make the European economy more competitive.

A RETURN TO BASIC ETHICAL QUESTIONS IS NEEDED

Rather than ever more complex rules, covering every conceivable thing that could go wrong, we may need to return to simpler, more general rules and rely on the courts to decide whether people acted in accordance with the spirit and intent of those rules.

For example, instead of prescribing in ever greater detail what companies must put in their annual reports, we may need to simply lay down a rule like

”the company must disclose all material facts that shareholders, customers, and creditors would need to know in their own interests.” 

Then leave it to the courts to decide if the company has disclosed all those material facts, and provide harsh penalties if the courts decide they have not.

That may mean businesses living with more uncertainty. Rather than know for sure whether some short cut they are proposing to take is legal or illegal, and if it legal feel free to go ahead with it, businesses in future may have to ask themselves the question ,

 “is this action right, fair to my customers, fair to my shareholders, and fair to the general public?”

And the answer is “no” to any part of that question, they should decide, of their own accord without consulting any regulator or professional advisor, that they will not do it.

A NEW LOOK AT AN OLD WAR

I have just read  “Battles for the Three Kingdoms, the campaigns for England, Scotland and Ireland 1689 – 92” by John Barratt , published by Sutton publishing.

For an Irish reader, this book is enlightening, because it shows how the famous battles in Ireland, like the siege of Derry (1689),the battle of the Boyne(1690), the sieges of Limerick(1690 and 1691) and the battle of Aughrim (1691) were part of a much wider war, that was waged both at sea between the French and Anglo Dutch navies,  and in Scotland  between Jacobite and Williamite armies .

In fact the last Jacobite stronghold on these islands to fall was in Scotland, at Bass Rock in the Firth of Forth, which did not surrender until June 1694, long after organised resistance had ceased in Ireland. Other parts of the conflict in Scotland were the battles of Dunkeld, of  Killiecrankie,  and of  Cromdale, and  the massacre at Glencoe .

After the war in Ireland ended with the  fall of Limerick in October 1691, a large Irish Jacobite army of 14000 men was assembled in Normandy in 1692, with a view to invading England, and might have done so, if the French Navy was not overwhelmed by the Anglo Dutch fleet in naval battles at Barfleur and la Hogue.

Irish students will know of some of the leading participants on the Jacobite side, like King James himself,  the French General St. Ruth, who fell at Aughrim,  and, of course,  Patrick Sarsfield, the Earl of Lucan.

But they will know little of other Jacobite leaders, who are brought to life in this book, like

 +  the MacCarthy Mor, who unsuccessfully defended Carrickfergus, + Richard Hamilton, who almost persuaded the defenders of Derry to surrender,  +  the Latvian, Von Rosen, who took a harder  and ultimately less successful line with the defenders of Derry, + Justin McCarthy,who lost the battle of Newtownbutler in 1689, + Balldearg O Donnell, who led an irregular force in North Connacht to the end of the war +  Roger McElligott, who  unwisely tried to hold Cork in 1690 against Marlborough, when he would have been better able to resist in Kinsale +  Colonel Bourke, who resolutely defended the fort at Ballymore, Co Westmeath in 1691 and  + King James’ own natural son , James FitzJames , the Duke of Berwick, who, like Sarsfield , went on to have a military  career in the French  army.

While the military judgement of King James does not come very well out of this book, it is fair to point out that his French military advisors did not even want him to fight at the Boyne at all, but to burn Dublin and retreat across the Shannon.

James felt, probably rightly, that his army would have disintegrated if he did not make a stand, although outnumbered and trying to hold a poor position.

Similar considerations arose a year later at Aughrim.  Sarsfield did not want St Ruth to stand and fight there, and favoured concentrating on the defence of Limerick and Galway instead, and thereby keeping the army intact. But St Ruth was worried about the effect on morale of taking such a course.

The author concludes that, at the battle of Aughrim,” the fighting qualities of the Irish troops had come within a measurable distance of pulling off a surprise victory”.

Political attitudes of the time were very different to the interpretations placed on them by subsequent nationalist historians.

The author says Irish Jacobites were fitted out in red uniforms, to emphasise that they were the legitimate army of the United Kingdom, fighting for the legitimate King, against the usurper Willliam of Orange.

When, in 1692, the French tried to get Irish soldiers in France to wear the French grey uniforms, the mutinied “until at length they were given red coats like those they had worn throughout their careers in Ireland”, the author writes.

 

OIL, GAS, AND COAL WILL EVENTUALLY RUN OUT

I am speaking this coming week at the Dubai Global Energy Forum. The focus of the Forum is on long term sustainable energy supply for the world. It is an important question.

We will, some time or other, possibly when most of those alive today have departed, run out of oil, gas, and coal.

While it is the case that known reserves of fossil fuel are increasing, not reducing, thanks to new technologies (like shale gas and horizontal drilling), the reality remains that fossil fuels are inherently finite. 

They will run out.

We just do not know whether it will be in two, or four or more, generation’s time. But run out they will...eventually.

Gulf States, like Dubai, Saudi Arabia, and Kuwait have substantial renewable energy potential, especially for use of solar panels, whenever solar energy becomes competitive on price with coal, oil and gas. This will happen, but there is a lot more research and development to be done.

RENEWABLE ENERGIES DO NOT YET COMPETE ON PRICE, BUT SUBSIDIES ARE JUSTIFIED

  

I saw one estimate of the present price of electricity from different sources. It was suggested that

• Natural gas and coal could produce electricity at around £50 per megawatt hour
• Onshore wind could produce it at £100 per megawatt hour  
• Offshore wind could produce it at £160 per megawatt hour and
• Roof top solar could produce it at £240 per megawatt hour.

This is why, for the time being, renewable energy needs some form of subsidy.

This subsidy is economically justified for two reasons

1. Oil, gas , and coal will eventually run out
2. The normal supply price of coal and gas does not include any sum to cover the long term financial damage caused by the climate change generated by coal and gas burning.

CO2 EMISSIONS ARE SPEEDING UP, NOT SLOWING DOWN

Climate change caused by the burning of fossil fuels is a huge problem. Substitution of natural gas for coal will slow down, because it generates less CO2, but it  will not reverse the progressive increase the amount of CO2 in the atmosphere.  This has  grown from 

•  355 ppm in 1990,
•  to 370ppm in 2000,
•  to 390ppm today. 

Despite all the Summit conferences, the rate at which CO2 is being emitted is now speeding up, not slowing down.

And we can see the results in the melting of the Arctic ice cap and the weird and unpredictable effects it is having on our weather. 

RENEWABLE ENERGY PRODUCTION WILL INCREASE TOO SLOWLY TO STOP CLIMATE CHANGE

Renewable fuels will not, for the foreseeable future, provide an answer to this problem.  This is because global demand for energy is growing so fast, far faster than renewable energy development.

Even assuming a carbon price of $80 per tonne (assumed to be eventually put in place by Governments to disincentivize fossil fuel use), one estimate I have seen suggested that

•  wind power use in electricity will increase sevenfold by 2040, from just 2% of global energy production today to just 7% by 2040, because demand will have increased so much.
• solar power use will increase twenty fold, but will still only provide 2% of global electricity by 2040, again because it will not increase fast enough to keep up with electricity demand.

And, politically, we are today far away from putting a global $80 per tonne price on carbon . The United States, with its newly discovered resources of oil and gas would resist this bitterly.

In most countries, including the United States, no charge at all is levied for pumping CO2 into the atmosphere. In some countries (including some Arab countries) the production and use of fossil fuels is actually subsidised. Taking such subsidies away would be very unpopular.

In the EU, where there is a charge for a permit under the Emission Trading Scheme, it is only at $8 per tonne at the moment, because governments insisted, when the Scheme was being introduced, on issuing so many free permits to their heavy industries. It is far below the price needed to encourage large scale substitution of renewable energy for fossil fuels.

ELECTRICITY WILL BE THE BIG CULPRIT

The biggest increase in CO2 emissions in future will come from electricity generation. Global electricity demand will grow by 85% by 2040. Heavy industry will be a big user, but so also will the Information Technology sector. Digital Warehouses already use the equivalent of the electricity that would be generated by 30 nuclear power stations.

And the decision by countries, like Germany, to abandon nuclear power will increase their use of coal to generate electricity.

The most rapid increase of all in coal fired electricity generation is taking place in China, although China is also leading the world in renewable energy development. Coal fired plants emit  32 times as much CO2 as gas fired plants, according to one estimate I have seen.

LONG TERM PROJECT FINANCE IS NEEDED

The tightening up of credit following the financial crisis has also made it more difficult to deal with the impending climate crisis. The funds are not available to finance the big structural changes that are necessary.  Renewable energy, and improving energy efficiency by using lighter materials, and recycling them, will require large capital investment. The new Basel 3 rules for banks, and the EU’s new Solvency 2 rules for insurers, will make it impossible, or at least very difficult, for these two sectors to be funders or investors in long term infrastructure projects.

Pension funds could be a source of long term funding for renewable infrastructure, but they have little expertise in the field.  This is a market that Ireland, with its established expertise in the international asset management and funds industries, is seeking to serve through the Green IFSC. Finding a way to provide long term finance for renewable, and energy efficiency enhancing, investments should be a top priority of the EU.

AND A LONGER TERM SOLUTION....PUTTING A REALISTIC PRICE ON CLIMATE DAMAGE

The response to the financial crisis has reminded us that knowing we have a problem, and doing something about it, are two very different things. 

The problem, of a huge build up of credit in some euro area countries and consequent huge payments imbalances, was known to EU policy makers as early as 2003, but nothing was done about it until recently. A financial and banking crisis was first needed, to create enough anxiety among the public, to give policy makers space to take action. It took the collapse of Lehman Brothers, and a stop in Europe’s banking system, to generate a willingness to do something about the underlying  economic and fiscal imbalances in the developed world.

Notwithstanding our level of unemployment in the developed world, the EU still taxes labour more heavily than carbon emissions. A global shift away from labour to resource taxation on the scale necessary would be politically very difficult because it would redistribute prosperity quite substantially  in favour of those of working age to the detriment of others. It would require a real climate change generated crisis to make this politically feasible. Perhaps major flooding in low lying highly populated areas of the coasts of the United States of Europe may be needed.

What might happen then?

It  would become politically possible to consider radical solution,  such as a carbon tax, with an accompanying levy or tariff on the carbon content of imports. A carbon tax in the EU, without some levy on imports would simply penalise EU industry.

Such a proposal would get no support at the moment. But its time may come.

HAS THE HEALTH OF THE IRISH WORKING AGE POPULATION REALLY DETERIORATED BY ALMOST 100% SINCE 1986?

As a proportion of the Irish population of working age, those who have been claiming  benefit because they have been certified as permanently  too sick to work, has doubled since 1986.

The proportion of the workforce in this position remained steady from 1986 to 1996, but shot up from 1996 to 2002, and has continued to rise steadily since then.

From 2006 to 2012, 53,000 extra people left the work and claimed disability due to a physical disability, and 27,000 extra people did so because of a diagnosed emotional or   psychological disability.

These figures were highlighted in a recent article in the “Irish Independent” by the economist David McWilliams, who claimed that this had happened despite the fact that, in general, the population had become younger and healthier since 1986.

It is worrying that, despite the big increase in health spending since 1986, the health service has been failing to keep the working population well enough to continue working.  

Why is this? I do not know the answer, but the Departments of Health and Social Protection should find out.

ILLNESS CLAIMS BY THOSE OF WORKING AGE COSTS TAXPAYER  2.6 BILLION EUROS

The total cost of payments of those too sick to work comes to 2.6 billion euros per year, consisting of 

+1109 million euros for  Disability Allowance(means tested),  which has 102,000 recipients, 

+  854 million euros for Illness Benefit( not means tested but based on social insurance) which has 73,000 recipients and 

+ 606 milllion euros for Invalidity  Pension ( payable those  of working age with a sufficient social insurance record who are deemed permanently unable to work), which has 50,000 recipients.

The basic rate of Disability Allowance in Ireland is 188 euros per week, as compared to an equivalent of 150 euros per week in the UK.

Illness benefit is also 188 euros per week, compared to  119 euros per week in the UK.

Some might say that the increase in illness claims of various kinds might be explained by the general reduction in the availability of work in Ireland since 2008, but the big increase in claims of permanent disability highlighted in David McWilliams article actually seems to have been  between  1996 and  2002, when there was no jobs shortage.

Serious questions have to be asked of the medical profession and the health service, both in terms of their effectiveness in keeping people well, and in terms of the care they take in certifying people as unwell.

IMPLICATIONS OF THESE FINDINGS FOR USE MEDICAL CERTIFICATION AS A BASIS FOR ABORTION

Each person who claims disability has to get a certificate from their doctor, who is obliged, by his or her professional ethics, only to write the certificate if the medical condition is genuinely one that would prevent someone from working.

Some are now suggesting that medical certificates about a woman’s mental state should be sufficient to allow the deliberate ending of the life of her unborn child.

The fact that there has been such a big, and unexplained, increase in certification by doctors, since 1996, that  their patients have a  permanent inability to work due to illness,  highlighted in David McWilliams article, should be examined very carefully indeed , before the use of medical certification as a basis for abortion is even contemplated.

THE NATIONAL COALITION OF 1973 TO 1977

I attended a small dinner in Leinster House recently of Fine Gael members of the Dail during the term of office of the National Coalition Government of Fine Gael and Labour ,  which was headed by Liam Cosgrave, as Taoiseach, and  which held office from  March  1973 to July 1977.

The dinner was hosted by Charles Flanagan, chairman of the Fine Gael  parliamentary party, whose father, Oliver J Flanagan, was from 1976 Minister for Defence in the National Coalition.

One of the   attendees was the current Taoiseach, Enda Kenny, who was elected to that Dail in a by election in 1975.

Notable attendees included Richie Ryan (Minister for Finance), Peter Barry(Transport and Power and later Education), Pat Cooney( Justice), Dick Burke(Education), and Tom O Donnell(Gaeltacht) .

The Government came to office after a General Election at the end of a period of 16  years of  single party  Government by Fianna Fail.

Fine Gael and Labour had a 14 point pre election pact, which enabled them to win the election, despite the fact that their combined  first preference vote was less than it had been in the  1969 election. In 1969, the Labour party had campaigned on the basis that it would not enter coalition and, as a result, the transfer of second preference votes between Fine Gael and Labour was much less, and thus  the seats won by both parties less than in 1973.

The term of office of the Government was dominated by two phenomena, the oil crisis of  1973 and its consequences for the economy, and the murder campaign of the IRA on both sides of the border.

The oil crisis meant high inflation, and restricted government revenues. The Government introduced food subsidies, and removed VAT from food .It also introduced new capital taxes, which proved controversial. Farm incomes rose substantially as a result of EU membership, and this led to urban/rural tensions of a kind not seen before or since. Social Welfare benefits were extended and new benefits introduced, such as for unmarried mothers. Education was reformed, with the removal of compulsory Irish from the Leaving certificate

The long, and pointless, campaign of violence by the IRA was at its most intense during the period of this Government.

Liam Cosgrave, Pat Cooney, and Conor Cruise O Brien and all the other Ministers of the National Coalition resolutely opposed the IRA by every legal and persuasive means at their disposal.

Liam Cosgrave negotiated the Sunningdale  Agreement in  1973, which in substance was as advanced  as the Good Friday Agreement of 1998. Unfortunately, many people had to die ,in the  quarter century it took the IRA to realise that  this was the maximum obtainable, given the demographic and political realities of Northern Ireland.

I served as Parliamentary Secretary to the Minister for Education (1973 to 1977), and to the Minister for Industry and Commerce (1975 to 1977), in the National Coalition.

One of the strengths of the Government  was the good personal relationship between Liam Cosgrave and the Tanaiste and Leader of the Labour party, Brendan Corish. They had served together in the Dail for long time previously and had shared interests, including horse racing.