I have written an article questioning whether EirGrid is an “illegal organisation”. The article is published in the Irish Law Times in three parts, with Part 1 to be found at pages 81-85 of Volume 32 (2014).
For those without access to the Irish Law Times, I will use this significantly less esteemed forum, my blog, to attempt to give a nutshell of the arguments presented in the article.
As a Member State of the EU, Ireland must accept large quantities of EU law into its own legal system. When it comes to EU Directives, this does not happen automatically, and the EU law has to be ‘transposed’ into Irish law – in other words, it must be ‘inserted’ into our legal system before it becomes law. This process is very complex and because it was practically impossible for the Oireachtas to examine each and every EU law trying to get into our law, the European Communities Act was passed which allowed the relevant Minister to introduce EU law through a Statutory Instrument. This has grave implications for the democratic process as it allows the Minister to introduce laws without the Oireachtas and that the average citizen does not even know about. Therefore, our Supreme Court laid down a very strict test, saying that this could only be done by a Minister if it was made ‘necessary’ by the Directive – in other words, if Ireland was legally obligated to adopt that particular law (as opposed to the Minister simply wanting to pass it).
Equally as importantly, once a Minister is satisfied that Ireland has to introduce a particular EU law into our legal system, he or she has to do it in such a way that it does not contravene our Constitution.
I have argued that Minister Mary O’Rourke was not obligated by the EU Directive to create EirGrid, and in fact the Directive seems to say that Eirgrid should not have been created, as the ESB was already fit for purpose. I have argued that the Minister created EirGrid for selfish political reasons, rather than for the good of the country. I have also argued that as the activities of a huge organisation like EirGrid fundamentally affect every citizen in this country, its creation should have been overseen by the Oireachtas, after intense public and political debate about, for example, a cost benefit analysis. Instead, the creation of EirGrid was carried out ‘under the radar’ and therefore was unnecessary, unconstitutional and illegal.
Finally, when looking at the powers granted to EirGrid, the applicable laws make it clear that EirGrid can only use these powers if it can be objectively proved that an upgrading of the grid is necessary in the first place. This has never been proved. The contention that we need an upgrade is merely a political opinion, fuelled by lobbying from the wind industry, which ignores many well-argued and conclusively proven studies to the contrary.
An example of such a study is the compelling argument by the Brown and White Report that a conversion of Moneypoint to biomass could fulfil all of Ireland’s renewable energy obligations at a tenth of the cost of the Government’s proposal.
Not only that, but this conversion of Moneypoint could fulfil our renewable energy quota without the need for an upgrade that this country cannot afford, it would create many Irish jobs, and it would avoid the consequent environmental vandalism that Minister Rabbitte seeks to perpetrate on our countryside by the building of extensive windfarms which in turn need lines of skyscraper-like pylons to carry the 400 KV cable that is strong enough to deal with the erratic nature of wind generated electricity.
Accordingly the article concludes with the argument that any use by EirGrid of their statutory powers would amount to an illegal, and actionable, act.
Whilst ostensibly dealing with the subject of electricity and energy policy in this country, this article seeks to raise fundamental questions about the state of our democracy. The Fine Gael / Labour government will conveniently point to the fact that EirGrid did not happen on its watch, it was in fact a creation of the Fianna Fail / Green coalition government under Bertie Ahern. That might be so, but this government has not sought to change this state of affairs, despite being in power for three years. Instead it has picked up the ball and run hard for the try line (apologies for the rugby metaphor but I’ve just watched Munster crush Toulouse), despite the clear objection of the vast majority of citizens in this country to this hare-brained scheme called an ‘energy policy’. It is this thinly-veiled contempt for the democratic system, as shown by this government, on which citizens can comment come election day on 23 May 2014.