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Pacta Sunt Servanda: Sacred? Sometimes!

Photo by Cottonbro CG courtesy of Pexels

[This blog is operating to a fortnightly production schedule during July and August to facilitate downtime in France. Next edition will appear on 20 July.

Bonnes vacances a toutes et a tous!]

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Though Brexit is still fairly described as “recent”, there has been so much water under the bridge before and after it, that one sometimes has to pause a while to recollect the precise timelines of events. The process involved two agreements between the UK and the EU. One dealt with the UK’s exit from the union. The other covered the future trading relationship between the two entities.

The withdrawal agreement, incorporating the Northern Ireland Protocol was settled late in 2019 and the UK exited the union the following January. There followed a year-long transition period during which the parties negotiated a trade agreement which, with much brinkmanship along the way, was settled on Christmas Eve 2020, eight days before the end of the transition period.

During that transition period, in September 2020, the UK Government announced its intention to introduce a bill to parliament which, among other things, would effectively have overridden parts of the Protocol. On 8 September, the eve of its publication, the Northern Ireland Secretary, Brandon Lewis, confirmed to parliament that the bill would breach international law, albeit “in a very specific and limited way”.

The Irish Times covered Mr. Lewis’ remarks in detail with reports from correspondents in London, Brussels and Dublin. The reports were uncertain about whether this was a “try on” to get the EU’s attention or an indication of deliberate intention actually to breach international law. But there was little doubt whatsoever that breaching international law was a straightforwardly bad thing to do.

From Brussels, European Correspondent, Naomi O’Leary reflected:

Britain itself relies on the principle of “Pacta sunt servanda” agreements must be kept all the time… The tenet that treaties made with others cannot lawfully be changed by just one side has built up our world order over hundreds of years.

Reporting the outraged reaction in Dublin, Pat Leahy summarised things thus:

People at all levels of politics and officialdom here and in the EU ask: how can the UK expect people to make agreements with it if it casually disregards the bits it does not like?

The newspaper set out its “official” position in an editorial the following day. Describing the British move as “an attack on the rule of law”, the editorial opined:

Whether the British move is an attempt to derail the Brexit talks or… evidence of its resolve to get a deal done, it must be confronted before any progress in the talks is attempted. …Cool heads must prevail but this is no small matter.

But the trade agreement was eventually settled along with a “road map” for the implementation of the Protocol and the “incendiary” provisions of the Internal Markets bill were withdrawn. Going into 2021, the clouds over the relationship seemed to have dissipated.

How the relationship between Britain and the EU has proceeded since then was perhaps prophetically foreseen in another snippet from Naomi O’Leary’s report on Brandon Lewis’s announcement of Britain’s intention to break international law:

There is much puzzling over how the move fits with Britain’s self-interest. International law renegades do not typically declare that they are breaking the law. They leave that to their critics to prove, while strenuously arguing their innocence, the better to get away with doing what they want.

That is where the UK is now, contemplating even more sweeping repudiations of its commitments to the EU while proclaiming the legality of those repudiations as robust. Nothing to see here!

Let’s leave the EU aside and turn to domestic matters in Ireland. In his weekly “Inside Politics” column of Saturday, 25 June, the same Pat Leahy considered the political implications of an official announcement that week:

The final wave of pay restoration to the best-paid public servants in the country is due to be introduced from next Friday, a step that will result in pay increases of 10–15 per cent for 4,000 of the public service’s top earners, who were already on salaries of more than €150,000 when the cuts were introduced. Nice.

Before continuing, I should say that it is over thirty years since I left the public service, so I have no dog in any fight over public service pay. My understanding though is that all other categories of public servants have already had their pay restored. So this is an instance of senior public servants catching up rather than receiving preferential treatment, except in the mathematical sense of the absolute quantum of increases being higher because the base salary from which the increases are calculated is obviously higher for senior staff.

Because the date for this final wave was prescribed in law, the Government would have to pass countermanding legislation beforehand to bring things to a halt. One reason why the Government didn’t do that was the possibility of a legal challenge. Mr. Leahy was sceptical about the merits of this “explanation”.

it is far from clear what form this [a legal challenge] might have taken. Government sources say they were advised that it was not permissible to amend or delay the terms of restoration. I don’t quite understand this. The whole purpose of legislation is, er, to change the law. Of course, the Government isn’t releasing its legal advice.

Instead, Mr. Leahy suggests, the Government is proceeding with these pay increases, not because it is right that governments should honour their commitments but only because doing so is the less bad of the binary choices (to pay or not to pay) available to it.

Not proceeding would “torpedo any chance of reaching agreement on a new contract for hospital consultants” who constitute 90 per cent of the beneficiaries. Mr. Leahy muses:

The doctors are used to playing hardball with politicians, and they don’t bother to affect the deference that other well-connected insiders such as the Civil Service and the semi-State sector feel compelled to show their political masters from time to time. In truth, the consultants have been bossing the politicians for decades. This is why we have a) extremely well-paid consultants, and b) politicians who get the blame for the health service.

Two sets of observations on Mr. Leahy’s piece.

First, though he does not encourage the government to retreat from the commitment into which it freely entered with the affected staff, he clearly sees that as at least a tolerable and reasonable option. This implies that Pacta sunt servanda is not a terribly solemn principle at all, but an optional rather than obligatory “rationale” for adhering to one’s commitments. Moral principles are not supposed to be like taxis that we can take to our desired destination and then dismiss. They are imperatives, supposed to be applied consistently and completely without fear or favour as a matter of right, even, perhaps especially, when it is inconvenient — unless they are “trumped” by a superior, conflicting moral obligation.

Mr. Leahy specifies the case for letting the fat cats go without more dinner.

Just as the Taoiseach and his Ministers were telling people who depend on welfare, or are struggling on low incomes, or are finding themselves making choices between fuel and food, that they must wait until October for further State help, the Government had to explain why it was giving its best-paid people hefty pay rises. People managing on 20 grand a year were watching people get 20 grand pay rises.

He concludes his piece with withering world-weariness. When it comes to budgetary and tax choices…

Will the best-connected people, the insiders, do best? The last week suggests that’s exactly what’s going to happen.

Mr. Leahy’s case is a rousing refashioning of the old music hall ditty She was poor but she was honest — cited earlier in the week by another Irish Times correspondent writing about the Government’s announcement.

It’s the same the whole world over, It’s the poor what gets the blame, It’s the rich what gets the pleasure, Isn’t it a blooming shame?

Isn’t it indeed! Stirring stuff for sure, but rounded and well-considered it certainly is not.

For example, if it is morally iniquitous for people to get “20 grand pay rises” while others are “managing on 20 grand a year”, it must surely be barely less iniquitous that the recipients of those rises are already being paid 150 grand a year, more than seven times as much? By how much should that 150 grand salary be reduced before it transitions from being iniquitous to being somehow “fair”?

Mr. Leahy is correct. There are wrinkles and inconsistencies in the pay arrangements for the public service as a whole as indeed there are in the remuneration of people generally in our country. But, Mr. Leahy must know that any alternative system would simply throw up a different set of wrinkles. Mr. Leahy’s rhetoric points in the direction of everybody being paid the same or similar amounts. That is certainly fair in some ways, but obviously unfair in many others.

Mr. Leahy also neglects the shades and nuances of how well-off people are and how they are managing, reducing the spectrum implicitly to two: haves and have-nots, insiders and outsiders.

For one example of the nuances in play in today’s Ireland, he might have turned back a few pages of the same Saturday edition of the newspaper to an article by its Consumer Affairs Correspondent, Conor Pope, on the problems Spain is facing in coping with an unexpectedly strong rebound in inward tourism. According to Mr. Pope:

That demand will be evident this weekend in Dublin when the summer holiday season starts in earnest over what is set to be the busiest weekend in Dublin Airport for almost three years. There will be hundreds of thousands of people flying off the island in search of sun with as many as one in five of the people walking through Terminal One jetting off to Spain, a country which attracts more than one million Irish people in a good year.

And this looks like being a very good year albeit one which is likely to cost Irish tourists at least 20 per cent more than in 2019.

Judging by those numbers, Ireland is home to many more categories of cat than just fat and thin ones. At the same time, I expect that many of those holidaymakers who really fit somewhere between those two ends of the spectrum would protest loudly that they are “struggling” to meet “essential” household bills if a microphone was thrust at them.

Second, Mr. Leahy’s view of consultants is casually stated as if it were a self-evident truth requiring no support of evidence, something of the “Everybody knows…” variety. I hold no torch for consultants any more than other public servants and know nothing about their terms and conditions of service beyond what I encounter in the media. But Mr. Leahy’s claims are serious enough and, indeed, derogatory enough of consultants, to warrant the support of at least some smidgins of evidence. But, none is provided.

His claims are not supported by a piece published in his own newspaper a few weeks previously.

On 28 May, 2022, The Irish Times contained a report on the circumstances of consultant psychiatrist, Dr. Nick Carrigan, who left Ireland to work in Australia in 2014, along with his wife, Dr. Allison Newman, also a consultant, and their three children. If consultants here have really “been bossing politicians for decades”, you might wonder why the possibility of quitting this perpetual gravy train would ever occur to a gilded couple like this, but here are snippets of what Dr. Carrigan had to say.

Some of their rationale for emigrating was a hangover from the financial crisis of the last decade. The Carrigans were hit by the triple whammy of higher tax on his salary and a “stupid” mortgage on which “interest rates skyrocketed for a while”. This mix resulted in Dr. Carrigan taking out a second job with the Mental Health Commission alongside his hospital work, thus burning the candle of his life at both ends.

But a lot of it was down to the professional context. As more and more doctors left the service for greener pastures abroad, the workload increased. While support services for hospital doctors were being stretched and sometimes cut altogether, the volume of medical administration rose making the job more stressful. His volume of on-call hospital shifts increased with no commensurate increase in pay.

And specifically, a propos Mr. Leahy’s thoughts:

Even with the pay cuts and increased workload, Carrigan said his family could have coped. But during the recession, he said a lot of negativity began to build in the media towards medical consultants. He said attitudes changed and people in well-paid, stable government jobs became “a focus of resentment and especially consultants, it appeared”.

“I don’t think greed is a characteristic unique to the medical profession or as prevalent as is portrayed in that profession. Doctors don’t look after themselves well enough which is why they endure the horrible working conditions that prevail in Ireland and the UK.”

There is no comparison between the work-life balance in Ireland then and Western Australia now.

He is less stressed, has more time for hobbies, family, exercise and has lost about 10kg since he arrived eight years ago.

An Australian consultant, who was on the Australian Medical Association committee that negotiates consultant contracts with the WA [Western Australia] government every three years, told Carrigan at a conference once that they don’t let Irish consultants “anywhere near the negotiations” as Irish doctors in WA were “too happy” and they “wouldn’t negotiate hard enough”.

Maybe Dr. Carrigan just has several chips on both shoulders or is otherwise an outlier within his profession. But, if that were so, would the newspaper not be delinquent for allowing him to parade his views unfiltered, without any consideration of whether they were at all reliable or representative of views among consultants generally?

There is no question that some people are already facing the now clichéd choice between “eating and heating” and that, absent more support, those numbers are likely to rise as we move into winter. But, there is no question either that some of the ostensible alarm at that prospect is more proclamatory than actual. For the ordinary punter, pleading the poor mouth rather than admitting the full belly is a better route to snaffling more of whatever might be going, which anyway many well-fed cats regard as no more than their due. Squeaky wheels not only get more grease. They deserve more too. Feeling hard-done-by is viscerally satisfying. For the media, fear, alarm and solidarity with the suffering are a saleable narrative.

But newspapers need to decide whether their long term interest is in seeking to enlighten their readers or to pander to them. “There go my readership, I must follow them.” does not sound like the right answer.

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Daire O'Criodain

Daire O'Criodain

Former diplomat and aviation finance executive, active now mainly in not-for-profit sector. Living in rural Clare. Weekly posts on Wednesdays.