Ireland

   

Quality of Democracy

#9
Key Findings
With strong and adaptable protections for basic freedoms, Ireland receives high overall rankings (rank 9) in the area of democracy quality. Its score on this measure has declined by 0.1 point relative to 2014.

Electoral processes are fair and transparent. Tightened regulations and increased public funding for parties have improved transparency, reducing the share of private donations. Gender quotas have been imposed for party candidate lists, but seem to have made little change in voting behavior. An independent electoral commission is being created.

The media is independent, with a pluralist ownership structure. Broadcasters are legally obligated to report in an objective and impartial manner. Libel and defamation laws may impair press freedom somewhat. Civil rights and political liberties are strongly protected. Constitutional provisions outlawing abortion and blasphemy have been overturned.

A recent report identified considerable corruption and inappropriate behavior by higher police-force levels when handling police whistleblowers. While judicial appointments have not been seen as politically motivated, an effort to change the appointment mechanism to end “cronyism” has proved controversial.

Electoral Processes

#11

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
10
On 6 May 2016, 70 days after the general election, a minority government – the first since 1997 – was formed by the previous taoiseach, Enda Kenny. This Fine Gael-led minority government replaced the two-party coalition of Fine Gael and the Labour Party that had taken office in March 2011. The 2011 general election had focused on the weakness of the economy after the four economic crises that had enveloped the economy between 2008 and 2011, namely the property market crash, banking collapse, fiscal downturn and financial crisis. In the 2011 general election, a highly dissatisfied electorate voted overwhelmingly against Fianna Fáil and its coalition partners enabling the coalition of Fine Gael and the Labour Party to take office with the support of 113 of the 166 deputies.

Despite redressing the effects of the four economic crises and the return of high economic growth rates, the ruling coalition government was ousted from office. The outgoing Fine Gael-Labour Party coalition campaigned under the slogan of “let’s keep the recovery going.” However, this slogan failed to understand the experiences of a sizable proportion of the electorate. Many voters felt that they had not benefited from the apparent improvement in the economy. In the 2016 general election, the coalition government lost a combined 57 seats with Fine Gael losing 27 seats and the Labour Party losing 30 seats. Fianna Fáil, the bête noire of the electorate in the previous election, regained 25 seats and Sinn Féin, an Irish republican party, increased its number of seats to 23.

The election also marked the further rise in the number of independents to 23 seats and marginal parties, including the Anti-Austerity Alliance–People Before Profit (6 seats), the Social Democrats (3 seats) and the Greens (2 seats). The 2016 general election was characterized by the high level of fragmentation of the party system with historically low levels of support for the three largest parties. The combined proportion of votes won by Fine Gael, Fianna Fáil and the Labour Party dropped to 56% from a long-term average of 84%.

The result of the 2016 general election has been described by leading political analysts, Michael Gallagher and Michael Marsh of Trinity College Dublin, as the election that nobody won.

Notwithstanding this, the two leading center-right parties Fine Gael (49 seats) and Fianna Fáil (44 seats) had sufficient seats to form a center-right government. The outgoing taoiseach, Enda Kenny, offered his Fianna Fáil counterpart, Micheal Martin, a full partnership government. However, initial discussions failed. Eventually, over two months after the election, Fianna Fáil agreed to abstain on votes relating to parliamentary confidence and supply until the end of 2018 (with a provision to renew this arrangement). This enabled Kenny to form a Fine Gael minority government with the support of nine independent deputies, three of whom were given senior ministerial positions. The replacement of Kenny by Varadkar as taoiseach in 2017 did not change this political arrangement. The threat of a general election in December 2017 was averted by the resignation of the tanaiste, Frances Fitzgerald, on an issue relating to communications during the Garda whistleblower inquiry. She was subsequently cleared of all wrong-doing.

The impact of gender quotas significantly changed candidate selection processes for the 2016 general election. The Electoral (Amendment) (Political Funding) Act 2012 encourages political parties to select at least 30% female candidates with the threshold rising to 40% by 2023. Parties that fail to reach this threshold lose half of their state funding. This reform had an immediate impact on the 2016 general election. In 2011, 15% of selected candidates were women. In 2016, this had increased to 29.6%. In terms of women elected as teachta dálas (members of parliament), the improvement was more modest, but still rose from 15% in 2011 to 22% in 2016. Interestingly the adoption of quotas did not change voting behavior. The Irish electorate (with the partial exception of supporters of Fianna Fáil) appear to be largely “gender blind:” people cast their vote for candidates based on their party affiliation, political experience and quality more generally. (See McElroy 2018 for more detail).

Citations:
Michael Gallagher and Michael Marsh (eds.) How Ireland Voted 2016 The Election that Nobody Won (Palgrave Macmillan published by Springer International, Switzerland, 2016)
Michael Gallagher, “Ireland’s Earthquake Election: Analysis of the Results,’ in Michael Marsh and Michael Gallagher (eds) How Ireland Voted 2011: The Full Story of Ireland’s Earthquake Election. London: Palgrave.
Fiach Kelly. “Kenny’s ceann comhairle move could bring trouble his way,’ The Irish Times, 9 Jan. 2016.

Fiona Buckley, Yvonne Galligan and Claire McGing, ’ Women and the Election: Assessing the Impact of Gender Quotas,’ in Michael Gallagher and Michael Marsh (eds.) How Ireland Voted 2016 The Election that Nobody Won (Palgrave Macmillan).
Michael Marsh, David Farrell and Gail McElroy (2017, eds). A Conservative Revolution? Electoral Change in Twenty-First Century Ireland. Oxford University Press.
Michael Marsh, David Farrell and Theresa Reidy (2018, eds). The Post-Crisis Irish Voter. Manchester University Press.
Gail McElroy (2018) ‘The Impact of Gender Quotas on Voting Behaviour in 2016,’ in Marsh, Farrell and Ready (2018, eds – listed above).

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
9
Irish political issues continue to receive widespread and detailed coverage in the press, on radio and on TV. Media coverage – especially on radio and TV – is subject to strict guidelines designed to ensure equity of treatment between the political parties. The state-owned national broadcasting company (RTÉ) allows equal access to all parties that have more than a minimum number of representatives in the outgoing parliament. Smaller political parties and independent candidates find it less easy to gain access to the national media. However, any imbalances that may exist at the national level tend to be offset at the local level through coverage by local radio stations and newspapers. Subject to normal public safety and anti-litter regulations, all parties and candidates are free to erect posters in public spaces. There were no significant changes in this area during the review period.

It is worth noting, though, that following legislation in 2009 (the Broadcasting Act), the 2011 election was the first in which RTÉ no longer operated entirely under self-regulation. This legislation meant that for the first time the regulation of both private and public broadcasters was vested in a single body, the Broadcasting Authority of Ireland (BAI). While these changes occurred prior to the current review period, research in this area is only just becoming available (see reference). The BAI does not, so far, seem to be all that effective in increasing transparency, although research suggests that RTÉ does have internal procedures that pay a great deal of attention to its statutory requirement to achieve “balance.”

All newspaper groups in Ireland are privately owned commercial operations. There have been some concerns about the dominant market positions of some media groups, in particular Independent News and Media (INM).

Citations:
Kevin Rafter (2015), ‘Regulating the Airwaves: How Political Balance is Achieved in Practice in Election News Coverage.’ Irish Political Studies 30:4, 575-594.
Kevin Rafter (2018), ‘The Media and Politics,’ in John Coakley and Michael Gallagher (2018, eds) Politics in the Republic of Ireland, 6th edition. Routledge.

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
8
There have been no changes in voting and registration rules in recent years. All Irish citizens aged 18 and over are entitled to be registered to vote in all elections and referendums. British citizens may vote in parliamentary, European and local elections; other EU citizens may vote at European and local elections; non-EU citizens may vote at local elections only.

There is no population register in Ireland on which voter registration might be based. Instead, an electoral register is compiled by local authorities. To register to vote, a person must ordinarily be a resident at the address recorded in the electoral register by 1 September, when the register comes into force. There is limited provision for postal voting. While there is no evidence of systematic discrimination or disenfranchisement of any social groups in the compilation of the electoral register, inconsistencies in the register have been repeatedly exposed, displaying a lack of investment in the electoral process and even a lack of concern for its integrity.

The constitutional convention recommended lowering the voting age from 18 to 16 and the government promised to hold a referendum on this proposal. However, it announced early in 2015 that it no longer planned to hold this referendum during the life of the present parliament.

In January 2015, the government committed to establishing an independent electoral commission during its term of office, but admitted that this commission would not be ready to function in time for the mid-2016 general election. It is hoped that it will be operational by the time of the local and European elections in 2019.

There was a small change to the layout of the ballot paper in 2016, designed to reduce possible voter confusion. The party logos, which were previously on the left of the ballot paper, have now been moved to the right just before the candidates’ photographs. This was designed to eliminate the problem of blank boxes on the left of the paper (in the case of independent candidates without a logo), into which some voters inadvertently or deliberately placed their preferences, thus spoiling the ballot.

Citations:
Preliminary study on the establishment of an electoral commission in Ireland, submitted to the Department of the Environment, Heritage and Local Government
by: Richard Sinnott, John Coakley, John O’Dowd, James McBride,
Geary Institute University College Dublin
November 2008
Programme for National Recovery 2011-2016, March 2011
Convention on the Constitution: www.constitution.ie
http://www.irishtimes.com/news/politics/reduction-of-voting-age-from-18-to-16-to-be-put-to-referendum-1.1458229

David Farrell (2015), ‘Conclusion and Reflection: Time for an Electoral Commission for Ireland,’ Irish Political Studies 30:4, 641-646.

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
8
Financing of Parties:
The financing of political parties in Ireland is supervised by the Standards in Public Office Commission (SIPO). Each of the political parties registered to contest a parliamentary or European election is required to furnish a donation statement to the commission and to publish annual accounts. The commission’s last published annual report is for 2017.

Political parties that obtained at least 2% of the first-preference votes in the last general election qualify for public funding under the Electoral Acts. The amount payable to a qualified political party is based on its share of the votes received in the last election.

Direct public funding is of two types. The first is a contribution to political parties’ annual running costs (excluding elections). Each qualifying party receives a fixed sum of about €130,000, plus an additional share based on the number of first preference votes it won in the previous election. In 2017, the total funding from this source was nearly €5 million. The second source is annual allowances to party leaders to cover expenses arising from work in parliament. The allowance for each leader is based on the size of their parliamentary party, although the amount given to government parties is reduced by one-third in order to lessen the “resource gap” between governing and opposition parties. Independent members of parliament are also entitled to this funding, which is currently €37,037.

Total funding from these two sources is considerable. In 2015, Fine Gael received €4.7 million, Labour €2.9 million, Fianna Fáil €2.7 million and Sinn Féin €1.7 million. In addition, smaller parties received a combined €330,000, while the 27 independent members of parliament collectively received €814,268. (Standards in Public Office Commission 2016: Exchequer Funding of Political Parties).

The figures above do not cover the reimbursement of election expenses, which are treated separately. In the 2016 general election, each candidate (that secured at least one-quarter of the quota at any point in the count) was entitled to receive a reimbursement of up to €8,700. The total paid following the 2016 general election was €2.7 million.
Combining all of these different funding sources, the total sum paid to political parties and candidates was just over €16 million in 2015. As Liam Weeks comments: state funding “amounts to 84% of parties’ total income and indicates the extent to which they have become dependent on the state for survival.”

While a lack of transparency in the sources of political finance used to be a big problem in Irish politics, the very considerably increased levels of state funding have reduced this problem, and strengthened regulation of political donations and campaign spending during elections. Candidates are required to declare all donations over €600, while political parties are required to declare all donations over €1,500. The amount of private donations to parties is now low, totaling €173,000 in 2015.
During elections (i.e., from the date of dissolution of the Dáil until polling day) there are strict limits on how much candidates can spend. For the 2016 general election, this ranged from €37,650 in a three-seat constituency to €45,200 in a five seat constituency. One caveat is that, outside of the “official” campaign period (defined above), there are no limits on what selected or prospective candidates may spend – which seems to be an odd omission.

Citations:
Standards in Public Office Commission, 2017. Political Parties’ Statements of Accounts, available at http://www.sipo.gov.ie/



Liam Weeks (2018), ‘Parties and Party System,’ in John Coakley and Michael Gallagher (eds) Politics in the republic of Ireland, 6th edition.

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
5
The first Constitution of the Irish Free State in 1922 provided powers of “initiative” and “referendum” to the Irish people. However, the first government removed these rights and they were never exercised.

While Article 6 of the constitution introduced in 1937 states that: “All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate all the rulers of the state and, in the final appeal, to decide all questions of national policy, according to the requirements of the common good,” it contains no provisions for direct initiatives or referendums. The main constitutional provision for referendums refers to proposed amendments to the constitution. The constitution also provides for a referendum on a proposal other than a proposal to amend the constitution (referred to in law as an “ordinary referendum”) but the initiative for such a referendum resides with the parliament. No “ordinary referendum” has been held in the state to date.

Direct Democracy Ireland, a political party, wants to replace representative democracy with participatory democracy in Ireland and to allow citizens to petition for a referendum on any issue by collecting a certain number of signatures. It obtained only 1.5% of the votes cast in the 2014 European Parliament election.

The constitutional convention discussed the question of popular initiatives and referendums, but did not make a recommendation on the issue.

Citations:
The Department of the Environment, Community and Local Government, The Referendum in Ireland, July 2012, available at
http://www.environ.ie/en/LocalGovernment/Voting/PublicationsDocuments/FileDownLoad,1893,en.pdf

The Constitutional Convention’s concluding commentary is available here:
https://www.constitution.ie/AttachmentDownload.ashx?mid=64bbfa68-89b9-e311-a7ce-005056a32ee4

Access to Information

#7

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
9
In Ireland, public and private media are independent of government. RTÉ, the state-owned broadcasting company, is supported by fees from a mandatory license. It is obliged to give balanced coverage of political events and to guarantee access to a variety of political views. Access by political parties for electioneering purposes must also be balanced. The state broadcaster faces competition from private TV and radio stations and does not enjoy a monopoly in any area.

The Broadcasting Authority of Ireland (BAI) was established on 1 October 2009. It has to “ensure that the democratic values enshrined in the constitution, especially those relating to rightful liberty of expression, are upheld, and to provide for open and pluralistic broadcasting services.” All broadcasters are legally obliged to report news in an objective and impartial manner, without any expression of the broadcaster’s own views.

All newspapers (whether they be “Irish owned” or “Irish editions of British newspapers”) are privately owned and dependent on commercial revenue; none receive public funding.

The Press Council of Ireland and the Office of the Press Ombudsman were established on 1 January 2008. Through it, citizens have access to an independent press complaints mechanism that aims to be “quick, fair and free” and to “defend the freedom of the press and the freedom of the public to be informed.”

Press and government keep one another at arm’s length. Preferences and biases arising from the views of journalists and broadcasters undoubtedly exist in editorial matters, but there is sufficient variety of editorial opinion and adequate complaints procedures to prevent this from undermining the democratic process.

Controversy has surrounded the issue of the right of a newspaper to protect its sources, for example by destroying relevant documents. The European Court of Human Rights ruled that The Irish Times had to pay its own costs in a case on this issue filed against it by the state. The court commented that the costs ruling could have “no impact on public-interest journalists who vehemently protect their sources yet recognize and respect the rule of law.”

Citations:
Kevin Rafter (2018), ‘The Media and Politics,’ in Politics in the Republic of Ireland (6th edition, Routledge).

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
8
A wide range of newspapers – national and local – are published in Ireland and this is augmented by the circulation of the main UK newspapers and weeklies. In addition to the range of public-service state-owned radio and TV stations, a variety of privately owned stations also exist. Irish listeners and viewers also avail themselves to UK English-language stations, which are widely received in the country. As a result, Irish readers, listeners and viewers are exposed to a plurality of opinions.

There is a plurality of ownership in the Irish media – the sector includes state radio and TV, private radio and TV, a variety of newspapers with varied private ownership, and many small-circulation magazines that purvey alternative political views and philosophies. However, there are recurrent suspicions about the influence and power of the Independent News and Media Group, an Irish-based multinational media company that owns the largest-circulation national titles. The control of this company has changed recently following a bitter internal feud. The group’s editors maintain that its journalists are not restricted in their professional freedom.

There are also recurrent criticisms of the views promoted by the state-owned broadcasting company, RTÉ, and of bias in its core news and editorial comment. There does not appear to be much basis for such claims.

Irish libel laws are restrictive and may impair the ability of investigative journalists to have their work published. However, the restrictions imposed by the existing laws do not imply any bias toward one end of the political spectrum or the other.

Broadcasters try to meet their statutory requirements of achieving balance in electoral coverage by adopting what Kevin Rafter describes as a “stopwatch” approach – making adjustments during the campaign to try and make sure that actual coverage closely corresponds to the pre-determined on-air allocations. This can be more difficult to judge at times when there is a large swing in the fortunes of the parties. The collapse of the Fianna Fáil vote at the 2011 election was a dramatic example of this difficulty. In 2011, RTE introduced a new weighting system composed of four elements (each element weighted at 25%), namely: first preference votes at the previous general election of 2007; percentage of seats held by the party at the time of the 2011 election; an estimate of the number of candidates nominated by each party in 2011; and an average of (a) mean opinion poll results from 2007 to 2011, (b) percentage of first preference votes in the 2009 European parliamentary elections and (c) first preference votes in the 2009 local government elections.

Citations:
Kevin Rafter (2018), ‘The Media and Politics,’ in Politics in the Republic of Ireland (6th edition, Routledge).

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
8
Irish Freedom of Information (FOI) legislation, initially enacted in 1997, was amended in 2003 to restrict access to data and information about decision-making in the public administration in several key areas, including defense, government meetings and areas of commercial sensitivity. The Freedom of Information (Amendment) Act passed in 2013 removed the substantive restrictions introduced in 2003, and extended FOI to all public bodies including the National Treasury Management Agency, the National Asset Management Agency, An Garda Síochána and the Central Bank of Ireland. Moreover, it reduced the cost of internal review from €75 to €30 and appeal fees from €150 to €50.

The existing FOI legislation has been used effectively by individuals and the press to gain access to information regarding the manner in which ministries reach decisions, the expenses incurred in public procurement, and instances of the waste of public funds. In 2105, almost 28,000 freedom of information requests were made to public bodies, with about 20% coming from journalists.

Government departments, ministries and agencies now have information officers to channel information to the public. In some cases, these officers act as purveyors of objective information; others act as spin doctors, putting biased interpretations on events to suit politicians.

The Central Statistics Office of Ireland (CSO) is responsible for the collection and dissemination of official statistics. An independent national statistics board oversees its performance. This office is located in the Department of the Taoiseach (the Prime Minister’s Office) and is not answerable to the ministers responsible for areas covered by the statistics. Sensitive data (such as figures on inflation and unemployment) are made available to ministries shortly before their publication, but they have no right to alter these data or to influence how they are presented. The CSO enjoys a good reputation internationally in both its independence from political interference and the technical competence of its staff.

A major problem has arisen with respect to the compilation of national income statistics by the CSO. Following changes to the European System of Accounts in 2010 as well as other statistical reporting procedures, the CSO’s statistics for GDP, exports and investment have been artificially inflated. This is due to multinational corporations transferring intellectual property rights to Ireland and then through a process of on-shoring in which the profits of their affiliates abroad are attributed to their Irish operations. Such has been the pace of these activities that official statistics for 2015 and 2016 are vastly exaggerated and need to be severely adjusted to determine the real value added by multinational corporations in Ireland. Both the Central Bank of Ireland and the Economic and Social Research Institute have published revised statistics using a value added approach to determine the real rate of growth of the Irish economy.

In May 2013, Ireland submitted a letter of intent to join the Open Government Partnership. Full membership was achieved early in 2014 with the submission of Ireland’s National Action Plan.

In 2015, there was controversy surrounding the right of journalists to report allegations made in the Dáil (parliament) in relation to commercial transactions between the National Asset Management Agency and a prominent businessman. The courts ruled that the allegations, made under parliamentary privilege, could not be reported in the press. In reality, they became public almost immediately.

Citations:
European System of Accounts 2010 and other Statistical Regulations (2014)

Office of the Information Commissioner, 2016. Annual Report 2015. Dublin: Stationary Office.

Civil Rights and Political Liberties

#4

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
9
The Irish constitution enshrines the full range of fundamental civil rights associated with a liberal-democratic state. Article 38 establishes the right to a fair trial; Article 40 the rights to life, liberty, property, freedom of expression and equality before the law; Article 41 contains provisions for the protection of the family. In November 2012, the constitution was amended by referendum to strengthen the provisions regarding the rights of the child.

On 25 May 2018, a referendum on “The Thirty-sixth Amendment of the Constitution of Ireland,” which proposed permitting the Irish Parliament (the Oireachtas) to legislate for abortion, was passed by 66.4% of voters. It was signed into law by the president on 18 September 2018.

Operating under the common-law system inherited from the era of British rule, the Irish courts have been active in discovering “unenumerated” rights implied by these articles. These include the right to bodily integrity, to freedom from torture, inhuman or degrading treatment or punishment, the right to work and earn a livelihood and the right to privacy.

Following the passage of the European Convention on Human Rights Act (2003) by the Irish parliament, the rights interpreted and developed by the European Court of Human Rights are directly enforceable before the Irish courts. The Criminal Justice (Legal Aid) Act 1962 established an extensive system of free legal aid to promote equal access to the law and the courts. Access to free legal aid in certain civil cases was established by the Civil Legal Aid Act (1995).

However, a plaintiff who takes a civil case through the courts and loses is likely to have to meet not only his/her own legal costs but also those of the defendant. The best legal advice is very expensive. These considerations limit the effectiveness of equality of access to justice especially in matters relating to defamation, property disputes and other areas not covered by legal aid.

The Protected Disclosures Act 2014 came into force in July 2014. This will offer legal protections for workers who report concerns about wrong-doing in the public, private and non-profit sectors. The law will cover all employees, contractors, agency workers, members of the police force (An Garda Síochána), and members of the Defense Forces.

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
Freedom of speech, freedom of assembly, and the right to form unions and associations without religious, political or class discrimination are enshrined in the Irish constitution. These rights have been protected and upheld by the Irish courts over the years, subject only to restrictions regarding sedition, blasphemy and breaches of the peace. In October 2014, the government accepted the constitutional convention’s recommendation that a referendum be held on removing the offense of blasphemy from the constitution. On 26 October 2018, the amendment to remove the offense of blasphemy from the Irish Constitution was passed by a margin of 64.85% to 35.15%. Notwithstanding this constitutional change, the Defamation Act 2009 has not been repealed. Section 36 of the act carries a maximum fine of €25,000 for the utterance of material that is “grossly abusive or insulting in relation to matters held sacred by any religion.” However, only the Director of Public Prosecutions can instigate proceedings under this act and given its wording many constitutional lawyers believe it is unworkable.
Sinn Féin, the political wing of the formerly illegal Irish Republican Army, has become increasingly involved in mainstream Irish politics. Its share of the national vote grew from 1.6% in 1992 to 13% in 2016, while the number of seats it occupies in parliament grew from zero to 23. No political group is presently excluded from access to the airwaves or the print media.

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
9
There are strong anti-discrimination laws on the Irish statute books. The Employment Equality Act, 1998 and the Equal Status Act, 2000 outlaw discrimination on grounds of gender, marital status, family status, age, intellectual or physical disability, race, sexual orientation, religious belief or membership in the Traveller Community in employment, vocational training, advertising, collective agreements, the provision of goods and services, and other opportunities to which the public generally has access. The Equality Authority is an independent body set up under the Employment Equality Act, 1998 to monitor discrimination. An independent equality tribunal was established under the same act to offer an accessible and impartial forum to remedy unlawful discrimination. These agencies have been active in recent years and successful in prosecuting cases on behalf of parties who felt they had been discriminated against.

In 2012, a referendum was passed to amend the constitution to explicitly recognize the rights of children and generally provide enhanced protection to children.

In May 2015, a referendum legalizing same-sex marriage was passed by a vote of 62% in favor, 38% against. The Thirty-Fourth Amendment of the Constitution (Marriage Equality) Act was signed into law on 29 August 2015.

Rule of Law

#17

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
7
Politicians are prohibited by law from interfering with the course of justice and attempts to do so appear to be very rare. Government and administrative units generally act predictably and in accordance with known rules. The use of ministerial orders can be to some extent arbitrary and unpredictable, but they are liable to judicial review. The third interim report of the Disclosures Tribunal by Judge Peter Charleton, on 11 October 2018, revealed a considerable amount of corruption and inappropriate behavior with respect to the handling of statements by police whistleblowers at the higher levels of the police force.
A significant degree of discretion is vested in the hands of officials (elected and non-elected) in relation to infrastructure projects as well as town and rural planning. Following the collapse of the housing market in 2009, there has been much less scope for corruption in relation to development and public contracts; public concern about these issues has waned. This may change as activity in the construction industry gathers pace.

Citations:
The report of the Inquiry into the behavior of the police in relation to allegations of misconduct and corruption is available here:
http://www.merrionstreet.ie/wp-content/uploads/2014/05/Final-Redacted-Guerin-Report-OCR.pdf

The inquiry into the circumstances surrounding the resignation of the Garda Commissioner was conducted by a former Supreme Court judge, Justice Fennelly, and is available here:
https://doc-0s-bs-docs.googleusercontent.com/docs/securesc/ha0ro937gcuc7l7deffksulhg5h7mbp1/bjfn1u1n4ifdcsekb8vsaf0a2nnd850m/1442836800000/10437822469195814790/*/0B2B2HUQaR5vwUnpJRTZnMU1tbWc?e=download
Disclosures Tribunal (Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters following Resolutions). Third interim report by Mr. Justice Peter Charleton, October 11, 2018.

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
9
A wide range of public decisions made by administrative bodies and the decisions of the lower courts are subject to judicial review by higher courts. When undertaking a review, the court is generally concerned with the lawfulness of the decision-making process and the fairness of the decision. High Court decisions may be appealed to the Court of Appeal.
In October 2013, a referendum proposing the creation of a new Court of Appeal was passed. The new court, which was established in October 2014, will hear cases appealing decisions of the High Court.

Between 1937 and 2015, the courts declared 93 cases unconstitutional (Hogan et al, 2015).

The cost of initiating a judicial review can be considerable. This acts as a deterrent and reduces the effectiveness of the provisions for judicial review.
The courts act independently and are free from political pressures.

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
7
The constitution states that judges are appointed by the president on the advice of the government (Articles 13.9 and 35.1).
The key government actors involved in making senior appointments are the taoiseach, the minister for justice, the attorney general and (in the case of a coalition government) any other party leader(s). This means that paper qualifications are not enough; “a crucial factor is being known personally by one of the key players” (Gallagher 2018, citing MacNeill 2016). Until 1996, this was an informal procedure.

In theory this all changed following the creation in 1996 of the Judicial Appointments Advisory Board (JAAB), which acts in an advisory capacity in appointments to the Supreme Court. The government has the power to appoint a person who has not applied to, and has not been considered by, the JAAB. Nevertheless, the JAAB acts as a kind of short-listing committee. It has now become known that “within around five years of its establishment, the JAAB, perhaps over-cautiously, deferred to legal advice that it might be infringing on the government’s constitutional right to appoint judges by doing anything more than simply forwarding the entire list of applicants to the government minus those that it deems unsuitable” (Gallagher 2018, 72, citing MacNeill 2016, 33). Thus, the JAAB in practice has been about weeding out unappointable applicants. Suggested reforms, which would return the JAAB to its originally intended role, might involve requiring it to rank-order a short list of three or five names (see Cahillane 2017).

In May 2018, the Dáil passed a new bill to establish a Judicial Appointments Commission to replace the JAAB. The new body is to be composed of five judges, three lawyers representing the attorney general and nine lay members (The Irish Times, 31 May 2018). The proposal is that the new body would recommend three candidates to fill any judicial vacancy and the government would choose one of them. The bill has been supported by the minister for transport, Shane Ross, who argued it would help to end “cronyism” in appointments. The bill has attracted opposition from some judges and opposition politicians who claim that it may undermine judicial independence. As of December 2018, the bill has still not passed the Seanad. The bill had been at committee stage in the Seanad, where 191 amendments have been tabled (The Irish Times, 28 November 2018). An Irish Times story was titled: “Taoiseach slates ‘Seanad filibuster’ of judicial appointments law.”

While the process does not require cooperation between democratic institutions and does not have majority requirements, appointments have, in the past, not been seen as politically motivated and have not been controversial.

However, changes made in April 2012 to the system of regulating judges’ pay and pensions, and the appointment of judges provoked controversy. Judges’ pay and pensions had been shielded from the cuts in public-sector pay implemented during the economic crisis, but a huge majority of voters in a referendum in October 2011 voted to remove this protection (almost 80% voted for this change). The Association of Judges of Ireland has called for the establishment of an independent body to establish the remuneration of judges, and improve lines of communication between the judiciary and the executive.

Citations:
David Gwynn Morgan (2012), ‘Government and the Courts,’ in Eoin O’Malley and Muiris (eds) Governing Ireland: From Cabinet Government to Delegated Governance. Dublin: IPA.

Jennifer MacNeill (2016). The Politics of Judicial Selection in Ireland. Dublin: Four Courts Press.

Laura Cahillane (2017), ‘Judicial Appointments in Ireland: the Potential for Reform,’ in Laura Cahillane, James Gallen and Tom Hickey (eds), Judges, Politics and the Irish Constitution. Manchester University Press.

Michael Gallagher (2018), ‘Politics, the Constitution and the Judiciary,’ in John Coakley and Michael Gallagher (2018, eds) Politics in the Republic of Ireland, 6th edition. Routledge.

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
7
The legal framework and rules regarding standards in public office have been progressively tightened and extended over time in Ireland.

In January 2014, Public Service Reform Plan 2014 – 2016 was published. Its stated goal was to maintain momentum with regard to reducing costs and increasing efficiency in the public sector, “to deliver greater openness, transparency and accountability and to strengthen trust in government and public services.”

Many proposed reforms are still at the planning stage, and it is too early to assess their impact on the integrity of officeholders and public servants.

On 6 September 2017, Assistant Garda Commissioner Michael O’Sullivan published a report showing that of the 3,498,400 breath tests recorded on the Garda’s Pulse computer system only 2,040,179 were actually recorded using alcohol testing devices. This left a discrepancy of 1,458,221 fictive breath tests. Three causes for this glaring deficiency were presented: (1) systems failures, (2) difficulties in understanding Garda policy, and (3) oversight and governance failures. It is highly regretful that the Department of Justice and Garda authorities have not seen fit to prosecute any member of the Garda force because of the massive over-reporting of alcohol breathalyzer tests.

On 11 October 2018, Justice Peter Charleton published the third interim report of the Disclosures Tribunal (Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters following resolutions). In the report, Judge Charleton vindicated the behavior of Sergeant Gerry McCabe, a Garda whistleblower, who had been treated appallingly (including allegations of child sexual abuse) by certain sectors of the police force. The report also vindicated Garda Commissioner Noirin O’Sullivan and the former minister of justice, Frances Fitzgerald. It was highly critical of the behavior of former Commissioner Martin Callinan and former Garda press officer Superintendant David Taylor.
The saga of the two Garda whistleblowers, Gerry McCabe and John Wilson, showed a deep antagonism in the upper echelons of the police force toward disclosures (whistleblowing) by junior members of the force. More disturbingly, it showed that some police superiors were prepared to blacken the name of whistleblowers by making untruthful allegations about them to government ministers, politicians and members of the press.

Citations:
The 2014 Public Services Reform Plan is available here:
http://reformplan.per.gov.ie/
Mr Justice Peter Charleton, Third Interim Report of the Disclosures Tribunal, October 11, 2018
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