THE PANEL (no, not the comedy show)

Whenever a Commission or Board of Inquiry is announced, the overall focus is on the people making up that panel. And this is right, because the people on that panel have usually worked long and hard in their particular areas of expertise to allow them to be considered for such a position in the first place.

The same must be said for the panel announced by Minister Rabbitte to look into two of the major EirGrid projects currently in their planning stages. The third major project was left out of the remit, on the grounds that it is almost ready to go to planning permission and therefore effectively does not count. The logic there is so flawed that it does merit comment – not in any language fit to be printed.

However, it is the terms of reference or the remit of the inquiry that is the real business. In a contested tribunal hearing, the lawyers for the opposing sides spend a few hours before their morning-tea arguing about who will be on the panel. For the rest of the week they argue about the terms of reference, as that could be the difference between winning and losing. No matter how gifted the individuals on a panel are in their particular spheres, their hands will be tied if the terms of reference are too restrictive.

Here, there is no contest. That does not mean that it is unopposed, but rather that the Minister did not bother to ask any of the hundreds of community groups opposed to the scheme what they think the panel should consider. Accordingly, the terms of reference will be decided by the Minister, one assumes on the advice of EirGrid, despite the fact that EirGrid is the subject matter of the inquiry.

Accordingly, and very unfairly for them, it falls to the individuals on the panel to attempt to cloak the proceedings with some credibility. Who are these individuals?

The chair of the expert panel will be former Supreme Court judge Catherine McGuinness. The other members are John Fitzgerald of the Economic and Social Research Institute, Professor Keith Bell of the University of Strathclyde, Dr Karen Foley, head of the school of landscape architecture at UCD and the economist Colm McCarthy.

Unfortunately for the credibility of this whole process, two panellists are already the subject of media glare. Professor Bell is alleged to have done consultancy work for EirGrid in the past; and Dr Foley is being scrutinised because UCD was heavily involved in the research and writing of the original NREAP.

That little drama must still play itself out, but just for the benefit of my non-legal readers: Remember, the question is not whether these people are biased or not – that is unfair on the individuals and is impossible to determine as an objective fact – the legal test is whether there is a justifiable apprehension of bias. In other words, are people reasonably nervous or suspicious of those individuals, however honest and noble of intention they may be?

Given the respective skills and expertise of the panel members, what can we expect them to scrutinise?

Judge McGuiness is a highly respected retired Judge of the Supreme Court who was involved in a number of landmark judgments. Legal issues that she would be well-versed to consider are whether EirGrid is in fact a legal institution given that it was created by Regulation seemingly in contravention of the EU Directive at the time; the impact of the Habitats Directive, the Birds Directive, the Landscape Directive and the Aarhus Treaty and whether Eirgrid have contravened all or any of these. In addition, she could consider if, and to what extent, the fundamental rights of citizens (to good health and happy children, for example), protected by Articles 40-44 of the Constitution, have been violated. That could keep her busy for the next two years.

At the same time; Colm McCarthy, who is hugely respected for his balanced analyses over the years of the economic and financial woes of this country, and John Fitzgerald, a distinguished academic and guru of macroeconomics; could be looking at the financial implications of the Grid 25 Project and just how much money is being paid out of our pockets to private wind-farm operators and foreign turbine companies. They could consider whether it makes economic sense to spend billions on projects which benefit some very wealthy individuals or corporations, provide perhaps a few jobs for foreign nationals employed by the foreign firms that supplied the technology in the first place instead of looking at ways of reducing energy consumption and providing jobs (like retrofitting houses); or why we are dead keen to surpass even the Germans (who have the most expensive electricity in Europe, perhaps the world) with our reliance on wind-power to the virtual exclusion of any other forms of renewable energy, despite our abundance of water, grain and cow-poo. That should keep both gentlemen busy for the foreseeable future.

We won’t consider what the other two will be doing as, although they are similarly expert and experienced in their respective fields, they might soon see fit to recuse themselves for reasons of professional integrity.

What all five of them should really be looking at, with their combined expertise, is the question a child could answer: Do we need Grid 25 at all?  Is the NREAP so fundamentally flawed, and dated in an area that is continuously evolving, that it needs to be torn up and rewritten?

Another question that is bemusing, and perplexing: Why does Pat Rabbitte keep denying that Grid 25 is about exporting electricity to the UK and France when it is obviously about that?

This might all take a very long time and must logically end in the whole thing being closed down – there is no other logical conclusion that can be reached.

What’s that you say? They are only looking at overhead versus underground and EirGrid is assisting their efforts? Oh, then we’re grand. They should be finished next week.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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