Breaking Ireland Up for Scrap
The Irish Times and other media have embarked on a strategy of bartering our rights and freedoms as though in a car boot sale, so they may preserve their own corrupted business models.
One of the main reasons why Substack is important (and to a more modest degree Unchained) is to do with what has happened to the mainstream, mockingbird media. Essentially, almost to a platform, they have resolved to flip their business models and flog their asses to the highest bidder. This is in part because their traditional market — readers, listeners, viewers — had started to dry up. People are no longer interested in being lectured about the pseudo-rights of bully-boy minorities and other leftist obsessions. Those who once set their clocks by the media have started to move online in search of some truth-telling. If there was any decency left in the legacy media, they would just fold their tents and call it a day. But there isn’t and they haven’t. Instead, they reckoned something like the following: We still have the remnants of an audience willing to pay for the garbage we publish, but it’s not enough to keep us viable. Why not augment that residual income by selling the eyes, ears and minds of what’s left of our audience to powerful interests with a requirement to sell none-of-our-business-what?
The mastheads and signature tunes remained the same, but the content changed without this necessarily being superficially detectable. What used to be content based on a desire to get to the truth of things was replaced by something close to the opposite: the things monied and powerful interests wanted people to know and nothing else. Essentially, the legacy media had resorted to cannibalising their own brands and traditions. What had before been instruments dedicated to the central journalistic ethic of calling power to account became platforms that had sold their mastheads and signature music as the imprimaturs of crude propaganda thinly disguised as journalism. Truth became lies. What had once existed to serve the public interest had seamlessly changed to serve those who regard the public interest — and inconvenient instruments like constitutions and rights conventions — as decidedly problematic to their agendas.
The Irish Times, for which I worked when it was still a fairly decent newspaper, provides a tragic example, as evidenced by an article published on its website on Thursday last, February 4th. The article was written by a David Kenny, described at the bottom of the article as ‘assistant professor of law at Trinity College Dublin’, and titled ‘Mandatory quarantine allowable under the Constitution’, with the subhead ‘The courts would give real weight to the fact that the Oireachtas think it is necessary.’
To begin with, this headline amounted to a straightforward untruth. The article was headed ‘Opinion’, but that headline does not suggest an opinion. It reads as a statement of fact, implying that the commentary below it is someone’s opinion on this fact, which the reasonably intelligent reader might infer arose from a recent judgement of the Supreme Court, the sole body in the land entitled to pronounce definitively on such matters. The reader has to advance significantly into the article before it becomes clear that the Supreme Court has yet to offer any view on the matter of the constitutionality or otherwise of mandatory quarantine. Most of those who have seen the headline have probably not bothered to go beyond its radically misleading assertion. The chosen headline could only be justified in this context if it were enclosed in quotation marks, inviting the reader to discover who had made this statement and with what authority.
The authority is simply that of an academic lawyer offering an opinion. The author disputes a recent statement of the Taoiseach that there were ‘compelling legal reasons’ why the policy of mandatory quarantines could not be implemented ‘for all incoming travellers’. Mr Kenny believes this to be incorrect, that the Taoiseach is wrong.
‘It is clear,’ continued Mr Kenny, ‘that these concerns relate to constitutional rights and liberties that would be restricted by the measure and leave it open to challenge in the courts. Though it is a significant restriction of rights, that would have to be carefully executed, there is a strong likelihood of it being upheld by the courts as constitutional.’ This, he explained, is because ‘constitutional rights are not absolute. Not every restriction on liberty or travel is unconstitutional. Restricting liberty is only unconstitutional if it is done otherwise than in accordance with law and basic constitutional principles. And rights can generally be restricted in the interests of advancing the common good or protecting the rights of others, once this is done proportionately.’
Mr Kenny then takes his readers through the issues a court would need to consider before coming to a decision on this matter. These are, in essence, whether the derogation of rights is proportionate, i.e. whether the damage imposed by such derogation is more or less than the benefits to the common good; and whether the law violates rights as little as necessary to achieve its objective, and is not arbitrary or irrational.
Then Mr Kenny delivered the verdict that gave rise to the subhead: ‘In applying this test, the courts give significant leeway to the Oireachtas. That body is more skilled in making the complex decisions and trade-offs needed for effective policy making. It is also accountable to the people.
‘The courts thus give real weight to the fact that the Oireachtas think a particular measure was necessary and only find it unconstitutional if it is clearly shown to cross a line into being disproportionate.’
This, together with what precedes it, amounts to a tautological statement: that, if the balance is found to be proportionate, the court will decide that the Oireachtas did nothing untoward in passing the legislation. Quite obviously, the central issue is whether the balance is proportionate, regardless of what the Oireachtas decided. This is a matter for the courts; otherwise there would be no point in the separation of powers. ‘Leeway’ doesn’t come into it. To suggest that it does is tantamount to suggesting that the courts are disposed simply to rubber-stamp contentious decisions of the Oireachtas. The assertion concerning the alleged ‘skills’ of the Oireachtas achieves the level of high satire. Anybody who thinks the Oireachtas — after the appalling events of last March — is any longer ‘accountable to the people’ has had his head somewhere dark and smelly for the past 11 months.
There follows a section in which Mr Kenny purports to explain why the balance of individual rights and common good would be best served by the introduction of legalised concentration camps to deal with people suspected of having the flu.
‘Mandatory hotel quarantine,’ he acknowledges, ‘is a serious deprivation of liberty and the right to travel.’ He then continues: ‘But it would be undertaken for a good objective, in the interests of the common good: to defend the life and health of other people in the state.’ He goes on to argue that, because nothing else has worked, such camps are now necessary. There is, he says, ‘a credible case that {concentration camps] could substantially advance this goal.
‘It would be done after careful consideration by the government and legislature, and after months of attempting many other means to suppress the spread of COVID-19 in the state. This would suggest that it is only restricting the right because it is strictly necessary. And it would be done in a severe public health exigency, where we have restricted all sorts of rights in the name of protecting the health and welfare of others, and where this measures seem no longer to be sufficiently effective. In this context, the restriction of the rights of those placed in hotel quarantine seems justifiable.’
The Irish people may consider themselves lucky that, up to the present at any rate, the Supreme Court is not inclined to arrive at decisions on the basis of suggestions, or on how things ‘seem’.
Mr Kenny here also replicates a dismaying tendency in legal and judicial circles over the past 11 months, and not just here in Ireland. His reasoning takes the usual circular path: If the government says there is a pandemic, then there is a pandemic, and no further discussion, public or judicial, is necessary or desirable. How things ‘seem’ is what matters.
And anyway, the introduction of concentration camps would all be done, ‘after careful consideration’ — presumably in the manner the Covid laws were pushed through the Dáil in March 2020, without a debate. But, don’t worry: as Kenny Everett used to say, it will all be done ‘in the best possible taste.’
Of course, David Kenny concedes, people ‘affected’ by such measures would be able to take court actions. He does not say that such actions would be delayed for many months, perhaps years, by a system that long ago ceased to fulfil its public obligations, and is using the Covid situation to justify sitting on its hands while the rule of law is trampled into the ground.
Mr Kenny concludes: ‘The way the Constitution is often discussed in our politics, one might think it was simply an obstruction to governance. But the Constitution is not a straightjacket. Though it places limits on governance, it exists to facilitate governance in the common good. The right it protects are important, but balanced with other concerns, and do not always win out over the general welfare. If the government wishes to not pursue policies because of supposed constitutional obstacles, we should be told exactly what these are, and subject them to close examination before accepting that the Constitution says no.’
Or. alternatively, if the government wishes to bulldoze through unprecedentedly restrictive incursions on the rights of the people, perhaps we should be allowed to conduct a full and robust public debate before accepting that the Constitution is a roll of toilet paper?
Here, Mr Kenny is plain wrong. The Constitution is a straitjacket. That’s precisely what it is. It exists for the sole purpose of placing a limit on incursions by government or state on the rights and freedoms of the people. Politicians in modern times have clearly come to see it as an ‘obstruction to governance’, by which they mean dismantling the rights of the people in one form or another.
Mr Kenny’s understandings may be a little out of date. Last September, in the case of Gorry & Anor v. The Minister for Justice & Equality & Ors, two senior members of the current Supreme Court, Mr Justice McKechnie and Mr Justice O’Donnell delivered judgements that Mr Kenny might want to read.
Both judges appeared to be by implication addressing the long saga of incursion on the meanings of certain words used repeatedly within the text of the Constitution that outwardly appear to have fairly absolute complexions. These words are sprinkled in particular all over the Fundamental Rights section of the Constitution, essentially Articles 40 to 44 inclusive, and include ‘indefeasible’, ‘inalienable’, ‘inviolable’ and ‘imprescriptible’. ‘Indefeasible’ means ‘not capable of being annulled or voided or undone’; ‘inalienable’ means ‘cannot be given away’; ‘inviolable’ means ‘immune from interference or incursion’; and ‘imprescriptible’ means ‘incapable of being lost by the passage of time’. In their analysis of the function of these words within the Constitution, the two judges appeared to be more or less agreed: the words mean pretty much what it says on the tin, and vague concepts like ‘the common good’ are insufficient to overcome the all but sacrosanct nature of certain individual rights and freedoms.
McKechnie J. said:
‘ … they are not absolute rights, of course, but the stridency of the language is notable, and this must be taken into account in interpreting the Article.’
O’Donnell J. took an even sterner line, declaring that rights protected by such words can only be subject to restriction if there is ‘compelling justification’.
He elaborated:
‘It is . . . strange to speak of individual rights (particularly those considered indefeasible or entitled to the highest level of protection) being limited (and, in truth, overridden) by matters as general as those identified such as the “common good” . . . Individual rights have value precisely because they are not subordinated to the interests of others. Second, it is unusual for individual rights to be overridden by such vague and general considerations . . . Furthermore, it is not normally enough to say that, while there is an interference with rights, the common good or the integrity of the immigration or social welfare systems are valid countervailing considerations.’
And later he added:
‘I also respectfully disagree that the words in Article 41, and in particular the words “inalienable” and “imprescriptible”, should not be given their ordinary and natural meaning.’
The wheel of justice has moved on, in other words, from the bland repetition of the tendentious assertion that the words of the Constitution of Ireland are ‘not absolute’. They may not always be treated as absolute, but they are not nothing either. Mr Kenny appears to believe that the Constitution exists to protect citizens only when no countervailing demand by a more powerful entity is being made — in which cases the people should just shut up, pack their suitcases and stand on the roadside waiting for the ‘secure transport’ (Obersturmführer Varadkar) to arrive.
A vital piece of information was missing from the article written by David Kenny, ‘assistant professor of law at Trinity College Dublin’. This information, if published, might have greatly assisted the reader in judging the merits and value of the article he had penned.
The information I have in mind is the following:
That in the financial year 2018, Trinity College Dublin received a grant of $230,000 from the Bill and Melinda Gates Foundation under the headings: ‘Program: General Health’; and ‘Issue: Vaccine Development’.
It may be argued that Mr Kenny belongs to a different department within Trinity College to the one that benefitted from the Gates donation. But there is here a matter of full disclosure, of providing the reader with all the information that a reasonable person might deem relevant. It seems to me axiomatic that, if someone representing Trinity College is to be allowed to write in a newspaper concerning a matter relating to public health, especially one in which the most basic freedoms of citizens are at stake, the reader of that article should at least be able to know if there are any conceivable conflicts of interest on the part not just of the author but of the institution he represents. That reasonable reader would also be entitled to know if any further such donations had been mooted.
The trouble is that the Irish Times has so far departed from the ethics of proper journalism that the concept of full disclosure in matters like this would by now be quite alien to its editors.
On the same day as the David Kenny article was published, the Irish Times also published its application to the Future of the Media Commission, in effect a begging letter directed at the Government, boasting about its numerous awards (decided by journalists of the same ilk as most of those staffing the IT) and the manner in which the various newspapers in the IT stable have been ‘championing in the interests of their readers’.
In a short but passionate speech in Dáil Éireann on the same day also, the independent TD Michael McNamara — our one-man Parliamentary Opposition — referred to this communication in speaking of the ‘oppressive’ atmosphere now prevailing in society ‘largely driven by elements of the media’, which he pointed out have been receiving huge financial supports and advertising revenues from Government departments for the past year.
“The Irish Times has their hands out looking for money from the Government. God knows they’re entitled to it — they’ve been doing their bidding for a year.’
At this point, those reading this article, wherever they may be, should stand and applaud, or rattle some pots and pans. At last, the truth spoken.
But it is not just that the Irish Times and other media have abandoned their readers and other members of the Irish public: they have turned against them. In the pay of powerful interests they provide platforms for people in the pay of the same or other powerful interests to not merely terrorise and mislead the Irish public but — increasingly — to attack their most fundamental rights and freedoms on behalf of said powerful interests. In other words, in order to preserve their own incomes and business models, they have decided to in effect break Ireland and its inheritance up for scrap, and sell it off, piece by piece, as though in a car boot sale — bartering the freedoms, institutions and very way-of-life of the Irish people, hard-won in blood over several centuries, to keep themselves in business while editorialising about the necessity for everyone else’s businesses to be closed down.
It is time the Irish people discarded these scrofulous rags and echo chambers before they render Ireland unliveable by human beings, and sell every last one of our freedoms like they were their own family silver.