Bring on the Super Sub!

super-sub

In this era of professional sport, who you have on the bench is as important as who you have in the starting line-up of your team. Coaches have to think long and hard about who will be seated on the substitutes’ bench as the substitute must be able to replace an injured or incapacitated player if necessary, but must also possess the skills to make a major, sometimes decisive, impact on the game. For example, in rugby union, the name of CJ Stander for the Irish and British Lions is a prime example of a “super sub”.

 

Politics employs a similar tactic. In the European elections, parties nominate a Substitute MEP so that in the event that the elected MEP becomes incapacitated, the substitute can continue to perform the necessary duties in the European Parliament. This is sound democratic practice, as it ensures that the region that voted in the original MEP continues to be elected by a member from the same (victorious) party. It also avoids the unnecessary expense of a by-election.

 

The EU legislation dealing with this is usually referred to as “The 1976 Act”.  Its full title is the “Act concerning the election of representatives to the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976”, (as amended and renumbered by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002. This amendment is not yet in force).

 

Article 13(3) of the original 1976 Act provided that:

“Where the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of the European Parliament, that mandate shall end pursuant to those legal provisions. The competent national authorities shall inform the European Parliament thereof.’

 

In other words, it was the duty of the Oireachtas to pass legislation dealing with the specific circumstances that would cause a sitting MEP to lose their mandate.

 

Interestingly enough, this provision has been replaced in its entirety by Article 12 of the amendment. Although it is not yet in force, it does illustrate the thinking of the European Parliament in this matter:

 

“1. A seat shall fall vacant when the mandate of a member of the European Parliament ends as a result of resignation, death or withdrawal of the mandate.

 

  1. Subject to the other provisions of this Act, each Member State shall lay down appropriate procedures for filling any seat which falls vacant during the five-year term of office referred to in Article 3 for the remainder of that period.

 

  1. Where the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of the European Parliament, that mandate shall end pursuant to those legal provisions. The competent national authorities shall inform the European Parliament thereof.

 

  1. Where a seat falls vacant as a result of resignation or death, the President of the European Parliament shall immediately inform the competent authorities of the Member State concerned thereof.”

 

 

The amendment is far more strongly worded than its predecessor as it now makes it clear that the national legislature of the Member States must legislate to deal with the situation where an MEP must lose their mandate.

 

The 1976 Act seems to envisage that a seat shall fall vacant only on resignation, death or withdrawal of mandate. In other words, if an Irish MEP is incapacitated through a long-term illness but fails to resign their seat, the only way that they can be involuntarily replaced is by a withdrawal of mandate by the Irish legislature.

 

What is the Irish law that deals with this?

The European Assemblies Election Act 1984 is the current legislation dealing with the election of MEPs. There is nothing in the Act dealing specifically with a withdrawal of mandate from an MEP, despite the EU law requiring same. Section 6 of this shoddy Act deals with “casual vacancies” and defines it as:

(9) In this section “a casual vacancy” means,

(a) a vacancy occasioned by a person who though elected or regarded as having been elected to the Assembly pursuant to the European Assembly Elections Acts, 1977 and 1984, is, by virtue of any provision laid down under any or all of the treaties, not entitled to assume the office of representative in the Assembly, or

(b) a vacancy occasioned by a person having ceased to be a representative in the Assembly otherwise than by the effluxion of time or in consequence of the making of an order under section 17 of this Act by the High Court.”.

 

This section is a statutory version of chasing your tail as a person must “cease to be a representative” but this expressly excludes the sitting MEP being voted out or their election being nullified by the High Court (after a petition-challenge in terms of Section 17).

 

So when can you cease to be a representative if you are not voted out, or do not die or resign?

Essentially, there is no Irish legislation dealing with this scenario. An MEP cannot be forced out of office, other then being voted out at the next election. Otherwise only they themselves can leave office by resigning, or dying.  There is no statutory instrument that can terminate their mandate against their wishes. If they refuse to resign, there is no law that can change that situation.

 

In a conversation with Dr. Jennifer Kavanagh, the leading expert on Irish Election Law and the author of “Electoral Law in Ireland” (Bloomsbury Professional, 2015) she described it as “a massive loophole in Irish law”.

 

All other public offices have statutory substitutes when the incumbent cannot act because of incapacity. This does not apply to MEPs – there is no fall-back provision!

 

So what has this to do with the fight against wind farms and the pylons used to carry their (meagre) output?

 

The South East of Ireland is under an intensive and prolonged attack by wind developers seeking to build wind farms all over Munster, including one in the Copper Coast World Heritage Site. We need a voice in the European Parliament to lead the fight against these invaders. There is clearly no help forthcoming from the Irish government, who have put all their eggs in the wind power basket.

 

The incumbent MEP for the South East is Brian Crowley. He is unable to represent his constituency due to ill-health. An inspection of the EU Parliament page shows that Brian Crowley’s attendance record is abysmal. In his previous term his attendance stood at 22% which equates to 18 months. In other words, Crowley missed 3.5 years of that term. His attendance in his current term (2014-2019) is even worse. He has missed 3 years 2 months since being elected in 2014. In other words, over the last 8 years Crowley has missed 6.7 years. Another Irish MEP has said Crowley should resign.

 

Ironically, Crowley is in all likelihood a supporter of wind farms. It is a matter of public record that he received election support from Murnane & O’Shea, who are well known in Ireland as wind developers.

 

Irrespective of Crowley’s views on the invasion of wind farms into his constituency, surely this inability to attend the EU Parliament to debate issues and cast his vote must be regarded as permanent incapacity which should trigger a withdrawal of Crowley’s mandate?

YES, it should, but there is no Irish legislation dealing with the matter.

 

And why is that, you wonder? It might have something to do with the fact that if an MEP resigned or had their mandate withdrawn, they no longer receive all the perks of the job. These perks include a salary of €8484 per month (€101,808.00 per annum); an expense account of €4342 per month (€52,104.00 per annum); a daily allowance of €306.00 (€79,560 per annum); and an office allowance of €29.883.00 per month (€352,000.00 per annum). This gives you a total package of €585,472.00 per year. Nice money if you can make it.

 

This might explain the Oireachtas’ reluctance to pass a law forcing the retirement/resignation of an incapacitated MEP. Some of our own TDs are MEPs of the future – why should they cut their own purse strings when it is possible to receive that sort of money for doing nothing?

 

And remember that this total package of €585,472.00 per year is the minimum package paid to an MEP as it does not include flights and travelling expenses. In addition, there is another real goldmine: sitting on committees. Being a committee member can net you up to €45,000.00 per annum. Crowley currently sits on the Energy Committee, the very people driving the wind farm madness. Imagine if we could have an anti-wind voice on that Committee?

 

And this finally brings me to the matter of the substitute who would take Brian Crowley’s place if he was forced to resign. Kieran Hartley was elected as the Substitute MEP. He ran on an anti-pylon / anti-wind ticket and received massive support as a result. He continues to be a driving force in the fight against the invasion of wind farms in the South East. His tireless work in helping communities the length and breadth of the country is the stuff of legend.

 

Don’t take my word for it. This is what Wind Aware North Cork had to say on the matter:

“Brian’s EU substitute, Kieran Hartley, has worked tirelessly to help communities all over Munster, ours included”.

(https://m.facebook.com/story.php?story_fbid=1589101137780849&id=836809563010014)

 

BarnaWind Action Group shared similar sentiments:

“Kieran Hartley has visited with us and helped out on many an occasion. This situation looks very unusual. Get someone out there working for us.”

(https://m.facebook.com/story.php?story_fbid=745105999011092&id=351079851747044)

 

There is a real chance that the citizens fighting the scourge of wind farms which are invading and destroying their communities could have a Super Sub in the form of Kieran Hartley in the EU Parliament, and on the EU Energy Committee.

How can we make this happen?

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 practice in 2002 to take up a full-time 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). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, Dr Jennifer Kavanagh; Electoral Law in Ireland; elections; MEP; TD, Easter Uprising, 1916 Revolution, Independence, IRA., EIA Directive 2014/52/EU, EirGrid; Insurance; Law; Cancer; EMF, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, lobbying; democracy; political process; general election, Ministerial Responsibility; Liability; Negligence; cardiovascular, North-South Interconnector; An Bord Pleanala, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Press Freedom, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty, Rugby Union; ; Super Sub; CJ Stander; IRFU; Munster Rugby;, The Spokes of the Wheel; wind farms; Ireland; Windfall, The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information, Wind Farm Contract, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans and tagged , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to Bring on the Super Sub!

  1. Pat Swords says:

    Neil

    Well put, his illness is unfortunate, but he is also taking the complete piss – he was elected to do a job and that comes with a responsibility to ensure it is done.

    Last September I presented in front of the petitions committee of the European Parliament in Brussels. I expected a degree of dysfunctionality, but I was completely taken aback at how out of touch with reality they are, in particular their behaviour related to ‘I have an opinion and therefore an entitlement’.

    To be quite honest, I found it quite scary in relation to what I saw there and to think that they are dictating to us through countless Directives, etc. The below is a definition, which unfortunately sums up what is going on there, it’s not politically correct to use the word belonging to the definition, but it explains the behaviour and as a result why there is such a mess being left behind for absolutely no gain. Bottom line, it needs some fresh blood and a shake up.

    A person who is obstinately or intolerantly devoted to his or her own opinions and prejudices

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