Home / General / Sherlock’s Folly – the problem is the system itself

Sherlock’s Folly – the problem is the system itself

There’s been a lot of very worthwhile comment and outrage over the so-called SOPA Ireland debacle in recent days.

I have a slightly different viewpoint on this, and some of you are going to roll your eyes at me for saying this, but this debacle is exactly what happened to the target shooters when Ministers McDowell and then Ahern went to change the firearms legislation in 2004 and again in 2009. Eight years of my life, that ate up, and what we’ve been left with is worse than what we had when we started in every measurable way.

And yes, it is exactly the same – both cases involve a complex piece of legislation that deals with issues that require a lot of technical knowledge and experience to fully grasp, but which gets siezed on by the media only in soundbite format, with large lobbying bodies both supporting and opposing any measure, and those drafting the law don’t have that required knowledge and experience and won’t accept it from outside bodies without a lot of work convincing them).

What I’ve learnt in those eight years is that:

  • Our parliamentary system is worse than useless, not because it’s unfair or undemocratic, but because after the General Election dust settles, you know who has how many votes and unless you’re the government, you can’t ever win a vote thanks to the party whip system. So in effect, you see only one vote that matters in the Dail, and it’s done by the people at every General Election when they vote for what party they want to run things (and enough has been said about parish pump politics to make the flaws in that approach fairly obvious). Coalitions make things slightly less stable, but only if it’s an issue the parties are willing to risk ministerial posts in the ensuing scrap.
  • But worse than that, while the outcome of any vote is set in stone every few years, every backbencher still feels they have to be seen to be doing something, so during any dail debate on any bill, Paddy TD will stick his two left feet in with an amendment to the bill which proves one or more of three things: that he has no clue what the bill is about; that he has no clue what the issues are for the people the bill will affect; or that he doesn’t actually understand how legislation works in this country. The number that fall into the third category would be sufficient in and of themselves to cause you to lose faith in our system.
  • The end result is that even if you get a Minister on side; and even if you get a Bill drafted that makes sense (actually, this can be easy enough – the civil servants in specific areas of the civil service are actually quite surprisingly professional and adept – which alas, only serves to highlight the general cluelessness of most TDs); and even if you successfully shepard it past the AG’s office, through all the many, many times it has to go there to be drafted and redrafted because the translation from working english to legalese tends to strip out the bits you worked hard to put in the bill in the first place; even after all of that, you still have to try to get it through the Dail with every jackal in the place looking to take a bite out of it or mark part of it as their territory (and if it’s a firearms bill, you ought to see how much the Sinn Fein backbenchers froth at the mouth when trying to do this. It would be funny, if it wasn’t several years of your life they were having a piddling contest over).
  • And then there’s the seanad. For which all of the above applies twice over, because they’ve got more time and less to do with it and everything waffles on for many, many more cringeworthy moments. If they really were a body of experts in various fields, as was the original intent, that wouldn’t be such a major flaw, but that’s not how things work at the moment. For example, one senator tried to debate our 1972 Firearms Act using Fredrick Forsyth’s The day of the Jackal as a guide. I wish I was joking with you about that. And the standard of debate (with only a few well-known and notable exceptions) has not improved from that low water mark in the intervening years.
  • And so what you finally get left with at the end (and this is assuming you did everything right and managed herculean feats of politics over a period of several years, in your spare time if you’re lobbying for a volunteer body as is often the case) is a mess that
    • looks nothing like what you started with;
    • usually doesn’t fix the problem you set out to fix;
    • causes five more problems if you’re lucky and far more if you’re not;
    • and now has to be implemented by the Gardai, who won’t receive any training in the new act because that would cost money (and they’re usually not allowed to consult outside experts or doing so would be felt to be inappropriate);
    • and inevitably there will be test cases in the courts for the worst of the broken bits, and then you’ll get a Judge (and yes, I’m thinking of one in particular) in on the case who’ll ignore precedent and give the most authoritarian and conservative line he can find, causing even more hassle and court time (one judgement in particular that I’m thinking of which happened recently has contributed to us now having over two hundred cases in front of the High Court regarding firearms licence applications).

Compared to this system, the judgement and competence of the individuals who sit in its various offices for short terms are actually not such critical factors.

Honestly, I’ve given up on the idea of working legislation in this country at this stage in almost any area of life. We’d need major change to fix the system of government before we’d get decent legislation for anything or decent decisions on anything; and when I say major change, I don’t mean something superficial and aesthetic like abolishing the seanad (which won’t fix the problem and in fact ignores it almost completely).

There are some things we could try:

  • Make the party whip system unconstitutional. That would shift power away from Cabinet and back to the Dail, forcing Cabinet to seek consensus instead of using the party whip to force bills through; and it might even make them have actual debates again.
  • Require independent experts in the problem domain to be officially involved in the drafting and debate stages of a Bill. That’s been shown to work well in the limited areas it’s been done in with the firearms acts, and in a country where the second largest industry in a recession requires college degrees in engineering, mathematics or computer science as a basic requirement, the idea of someone drafting law for that industry who may not even have a basic grasp of the concepts involved is rather counterproductive if not outright damaging.
  • Have mandatory automatic rollbacks of legislation (like the US’s sunset clauses). So if something works badly enough, it’s easy to dump instead of us being stuck with it for decades, as happens today. This would also require mandatory reviews of enacted legislation, which would in turn require monitoring and metrics to see how well a law has performed. If benchmarking is a major concern in the public sector, shouldn’t we have it in the Dail too?
  • And it’s a small enough change, but require any amendment to an Act to be accompanied by a mandatory restatement of that Act so that we have one and only one document to read in order to see what the law on something is – the Firearms Act is currently spread over 19 acts, two eu directives and sixty-plus SIs. And while we’re working on that, we should require all SIs to be published in the same place (there isn’t a central clearing-house for secondary legislation in Ireland at the moment. You get notices in Iris Oifigil, but not the text of the judgement). And it might help if we had some sort of system by which it can be easily spotted what parts of what Acts have been commenced and which are still not active. I mean, if you can’t even read the law without spending an hour cross-checking everything, what hope have you?

You’ll notice that all of these suggestions are utterly unrelated to Sherlock’s Folly. There’s a reason for that – we’re seeing this more and more as our system of government and our society as a whole comes under more and more stress from economic issues – and it’s that it is our system of government itself that is the problem. Not the party that’s in government, not the individuals sitting in the Ministerial offices or the Taoiseach’s office, but the actual system itself that they operate within. It’s designed to take a tiny group of people once every few years and put them in charge of the entire country, without any real check and balances.

Yes, we don’t see them going completely off the rails (unless you read the newspapers), but we do see them obscenely overpaid, we see them ignore completely any pre-election position statements if they’re elected to power, we see the Dail not having any real debates (and usually left completely empty) despite having arguably more TDs than a country twice this size would need, we see nearly a thousand quangos with no real power but with all the responsibility of regulating things (and that’s a contributing factor to the economic crisis we’ve been in for the last few years), and generally, we see all the negative side-effects of a broken system of governance. The only reason we don’t see comic levels of abuse of power on a daily basis is pretty much down to social pressures (though frankly, with some TDs, we see those comic levels fairly regularly anyway, and they get away with it because we regard them as “characters” instead of cheats, bullies, liars and other negative things – but that’s more a social failing than anything else).

And frankly, until we solve this systemic problem, we’re going to be looking at oncoming crises for the foreseeable future. This week it’ll be Sherlock’s Folly. Next week, it’ll be something else. All the while, it’ll be concerns over the burning of bondholders, the closing of hospitals, the upgrading of septic tanks, and on and on and on. That’s what happens when you have a broken system and only focus on the symptoms and not focus on fixing the systemic issues themselves.


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