SUPREME INJUSTICE - Prom Note challenge is lost

SUPREME INJUSTICE

According to the Central Statistics Office (CSO), the total tax-take for Ireland in 2010 from the following sources was as follows:

Income Tax (incl. USC and Health & Income Levies):                       € 14.33bn

Corporation Tax:                                                                              €   3.94bn

Capital Gains Tax:                                                                            €   0.35bn

SUB-TOTAL:                                                                                    € 18.62bn

  

Add to that the following:

Motor tax, PRSI, Training & Employment Levy, Death duties etc:     €   8.21bn

TOTAL TAX on income, wealth and capital:                                 € 26.83bn

GIVING AWAY THE HOUSE

By the end of that same year the then Finance Minister, Brian Lenihan, had issued Promissory Notes to the eventual total value of €31bn to two already insolvent banks, Anglo Irish Bank (€25.5bn) and INBS (€5.5bn). 

In other words, in 2010 the Finance Minister took the entire tax take from every worker and every company in every industry in the country, plus death duties and other such sundry taxes, topped it up with over €4bn from our National Pension Reserve Fund, and gifted it to the failed creditors of two failed banks.

All the above was done without any reference to us, the people who are now landed with paying this debt; all the above was done without any real reference even to those we elected to represent us, across all parties and none; it wasn’t fast-tracked, it was railroaded through the Dáil.

HISTORIC JUDGEMENT BUT CURRENT PAIN

It’s important to note also that this isn’t just stale news. The €31bn that was created for those two insolvent banks by our Central Bank was of course never going to be paid back, a fact that was well known at the time. 

The reason it was done was twofold: 1) The ECB had no structures in place to deal with insolvent banks (it does now, far too late for us), and 2) In the absence of such structures, it feared a domino effect if those two banks were allowed collapse, thus colluded with the Irish government and the Central Bank of Ireland to circumvent its own rule on bailing out insolvent banks and accepted the Promissory Notes as collateral.

That €31bn must now be taken back out of circulation by the Central Bank of Ireland. It’s being done in chunks. 

Originally, starting in 2011, it was scheduled to occur before March 31^st of every calendar year, and the new government did in fact destroy €3.1bn that year. Then came Michael Noonan’s infamous Promissory Note deal, in February 2012, when both Anglo and INBS (now the IBRC) were eventually and inevitably wound up, and with it a new schedule. 

In 2014 our Central Bank destroyed €1bn, in 2015 it was €2bn, and so far this year, another €1bn. That means a total of at least €6bn has now been destroyed (I know, you’d expect that information of this magnitude and import would be broadcast loud and wide – it’s not), which leaves €25bn still to be taken out of circulation.

All that €31bn will be borrowed, all will be destroyed, all will have to be repaid – plus interest. Nothing Michael Noonan did in his ‘deal’ changed a syllable of that.

A LEGACY THAT HAD TO BE CHALLENGED

That is the legacy that Michael Noonan and his government partners are leaving our children, and their children. That is why Joan Collins took up David Hall’s court challenge to the legitimacy of those Promissory Notes, that is why yesterday was so important.

That the Supreme Court would decide, unanimously, that all this isn’t just legal, it’s constitutional, is alarming to put it very mildly.

Under this ruling, a sitting Minister of Finance can basically decide to place an unlimited amount of debt (€31bn just happens to be the total in this instance) on the people, not even a pretence at debate, no checks and balances, and that’s ok? This is democracy?

BALLYHEA SAYS NO

The Ballyhea Says No campaign has always been about trying to alert people to what’s happening, trying also to right the wrong done to us not just with the Promissory Notes but through the entire bank bailout debacle, the threats, bullying and blackmailing from Europe. Our focus has been on the political side, working hard to get politicians together from all parties and none who will then take this fight to Europe. We will continue that battle, but we will also continue those like Joan and David who take the legal route. Perhaps their next option is the European Court of Justice, but that will be for them to decide and I know already of one MEP at least who will join them in that exercise!

Whatever they decide, they will have our support. Meanwhile we continue our efforts to bring another Private Member’s Bill to the Dáil, while simultaneously preparing a Written Declaration in the European Parliament.

This battle is lost, but then again the 1916 Rising wasn’t exactly a victory either; look how that turned out. We persevere, spirits still high. 

100 years after 1916 - reclaim the legacy

There’s an article in today’s Sunday Business Post headlined ‘Irish Central Bank plans €1.7 billion profit to State’, with the sub headline below that which proclaims - ‘Windfall stems from sale of bonds linked to Anglo liquidation’.

This is a story that we in the Ballyhea Says No campaign have been tracking for some time and believe me, there’s a lot more to it than what you’ll read in this article, or indeed in any of the similar articles that have appeared on this issue over the last few years in publications such as the Irish Times. It all stems from the bailout of Anglo Irish Bank and Irish Nationwide Building Society in 2010, the creation of €31bn using the Promissory Notes, €31bn that now the ECB insists has to be taken back out of circulation.

What’s being reported is this:

• The Central Bank is selling off the IBRC bonds (what we call the Promissory Note bonds, the fruit of Michael Noonan’s 2013 sleight of hand when he replaced the Promissory Notes with those sovereign bonds) in tranches of €500m, for a profit; 
• That portion of the IBRC Promissory Note debt is then ‘cancelled’.

In 2014 the Central Bank of Ireland sold off two such bonds; in 2015 they sold four more, a total value of €6bn, from which sales stem the profit. With the ‘cancellation’ of those bonds, the value of the IBRC debt has fallen from €28bn to €22bn. 

All fine and dandy, and all true.

But it’s not the full truth, nor even the half of it.

What’s NOT being reported is this:

• The purchaser of the Central Bank IBRC bonds is NTMA, our National Treasury Management Agency; 
• They are buying those bonds with money they’ve raised from the markets – borrowed money, on which we are now paying interest and which in time, will have to be repaid in full; 
• The ‘profit’ the Central Bank of Ireland is making is thus made from the NTMA – one national agency making a ‘profit’ from a transaction with another national agency; 
• That ‘profit’ goes to the exchequer, but it’s money that has already been borrowed – by us; 
• And the €500m that the Central Bank of Ireland also receives from the NTMA, the means by which the IBRC debt is ‘cancelled’? It’s destroyed, taken out of circulation.

·       So, to summarise: 

• The National Treasury Management Agency uses a borrowed €680m to buy a €500m IBRC bond (they’ve increased in value since they were issued three years ago – don’t ask!); 
• The Central Bank of Ireland destroys €500m of that €680m, per the terms of the Michael Noonan Promissory Note ‘deal’, to satisfy the ECB (it thus destroyed €1bn of borrowed money in 2014, then €2bn in 2015, is holding €22bn awaiting the same fate);
• It gifts the balance of €180m to the exchequer – the profit.

The question then – why doesn’t the Sunday Business Post report all this? Why not the Irish Times, the Irish Independent, the Irish Examiner, RTE – anyone? Why don't they look behind their own headlines and find the full story?

Today is the exact 100^th anniversary of the 1916 Rising. Those men and women who took to the streets of Dublin fought for ideologies that I don’t think our current political leadership don’t even begin to understand. Freedom? Independence? Casting off the yoke of a foreign empire? Control of your own destiny as a nation, your own finances, your own decisions?

They have surrendered that hard-fought freedom, that blood-won independence; in allowing themselves be bullied and browbeaten into accepting debt that was never ours, debt such as the €31bn Promissory Notes, they have saddled their own people with another yoke, another empire.

They don’t it yet though, but another Rising has begun.

PROMISSORY NOTES SUPREME COURT CHALLENGE - PART TWO

On Monday, February 22^nd 2016, the Supreme Court resumed its hearing of the challenge by Joan Collins TD into the constitutionality of the €31bn Promissory Note debt.

First on his feet, to finish where he had left off on Thursday last and to summarise his argument, was John Rogers SC, acting on behalf of Joan. He had been granted that extra time – ten minutes – by Chief Justice Susan Denham. John being John, ten became 15 became 20, until eventually the amiable Susan’s gentle reminders took effect…

He used that time to good effect however, reinforcing his already forceful argument of last Thursday that in assuming sole responsibility in signing off on the Promissory Notes that put Ireland on the hook for €31bn of debt, then Finance Minister also assumed a responsibility that exceeded his authority and his government’s authority under the Constitution. 

BALLYHEA SAYS NO CAMPAIGN

To digress for a paragraph: This is the same €31bn the ECB insists that under rule, and because Anglo didn’t come good on those billions, must now be taken back out of circulation. They have ‘called in’ the government Promissory Notes, so to speak, and that €31bn is currently being borrowed in stages by our National Treasury Management Agency, given to our Central Bank and being destroyed by them. Already €6bn has been borrowed and destroyed, €2bn of that last year alone, with €25bn still being held and awaiting the same fate – those are 25 billion good reasons why we in the Ballyhea Says No campaign will this Sunday complete five years of weekly marching and continuous campaigning, in parallel with what Joan Collins, David Hall and John Rogers are doing in the Four Courts. If we lose, that entire debt, plus the interest, is loaded onto the shoulders of future generations – in 2016, this is not the legacy we want to leave our kids. It’s a fight we may not win, we’re aware of that, but at least we’re ENGAGING; our government surrendered without even an argument, never mind a fight.

ARTICLE OF FAITH

Anyway, back to John Rogers. Article 11 of the Constitution is what John using to underpin his argument, which goes as follows:

All revenues of the State from whatever source arising shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes and in the manner and subject to the charges and liabilities determined and imposed by law. 

Because the Promissory Notes were never voted on by the Dáil, never mind approved ‘subject to the charges and liabilities determined and imposed by law’.

There are no exceptions to this, he argued, and on Monday, used several examples from the German Courts and the German Constitution (which is similar in that context to ours) to bolster his argument.

SECOND HALF

The ball was then in Michael McDowell’s court, also a Senior Counsel, also a former Attorney General but given that he is also a former Minister for Justice, trumping Mr Rogers in the ‘honours’ department.

He is a formidable debater, is Michael McDowell, more fluid in his delivery than the ultra-painstaking John Rogers, more casual even in his stance, lifting his knee occasionally to rest against the lectern from which he was speaking.

He began early with a claim that an opinion on the Promissory Notes expressed in the Dáil was automatically the opinion of the Oireachtas and thus satisfied the conditions of Article 11. Maybe I misheard, maybe I misinterpreted, but those around me were of the same opinion I had reached, that as an assumption on which to base the power of one person to assume any debt for any length of time on behalf of a nation, this was a hell of a stretch!

He then went on to outline what he saw as legal precedent after legal precedent for the Promissory Note, including (on a couple of occasions) the pay and pension of the Judges themselves, set in Statute but the amount for which is not set in stone.

HOLD YOUR TONGUE, BITE YOUR LIP

The way the Court seems to operate is that each side gets their own time to argue their case, so just as Michael had to sit through John’s presentation, so John now had to bite his tongue as Michael took his shots.

Those of us watching all this though had our own thoughts and I couldn’t help wondering – NONE of the precedents presented by Michael McDowell matched the Promissory Notes, not in the scale of the exposure, not in the fact that all those other examples would have been debated in the Dáil at some stage, not in the fact that Brian Lenihan had time and opportunity to present the Promissory Notes to the Dáil for its consideration but didn’t (for whatever reason). He brought up for example a putative tunnel connection between Ireland and Wales, the cost for which would have to be committed to by one Dáil but the annual payments for which would be passed on to future generations, without the power to reject those payment – surely though the original ‘spend’ would have been debated and approved by the Oireachtas, no?

While none of us could voice those questions, the same doesn’t apply to the Judges and boy, did they give Mr McDowell a going over, so much so that on occasion he was reduced to near silence, had to concede he was unable to give an answer. As Michael was arguing at one stage that the Dáil, which hadn’t had any opportunity to debate the Promissory Notes, could merely give the nod to the subsequent payments (the annual destruction of money), Judge Charleton interrupted with an interesting analogy, ‘So in household budget terms, the Oireachtas can debate the groceries but not the mortgage?’.

HOSTAGE TO FORTUNE?

There was one argument put by Mr McDowell that may have major significance later, when this case ends up in the European Court of Justice (as I think is inevitable, should it be lost). Monetary financing – direct central-bank funding of government expenditure – is expressly prohibited by the ECB. In his presentation Mr McDowell reiterated something that had been said during the High Court hearing, that the instant the Promissory Notes were issued they became capital, an infusion of finance into the then insolvent Anglo Irish Bank. This capital came from the Emergency Liquidity Assistance fund, those funds drawn down by the Central Bank of Ireland. What was that if not monetary financing? What was that if not a blatantly illegal use of a fund that was to be used – explicitly, by ECB rule – ONLY for solvent institutions?

Just over a month ago a group of us from the Ballyhea/Charleville campaign, in company with two TDs and an MEP (Joan Collins, Catherine Murphy and Marian Harkin, respectively), met the new Governor of the Central Bank of Ireland, Phillip Lane, and he argued that the Promissory Notes made Anglo solvent – if the Promissory Note and the capital injection were simultaneous, how can that be?

SMALL PRINT…

This is just a very brief overview of what was an intense four-hour presentation, and just a layman’s overview at that of what were very detailed legal arguments, so please bear that in mind.

As outlined in the report of the first day’s proceedings, this is a case of enormous significance for us all. A win for Joan Collins and it means the Promissory Note debts were unconstitutional, that debt illegal; a loss, and it means that any and all future Ministers for Finance can assume – on his her/his own – responsibility for any amount of debt for the State. That’s kind of important like…

For those of us who have been following the case there will be yet another day out in the Supreme Court, when John Rogers will have his final say. Then will come the deliberations, the seven Judges going beyond what was presented to them and digging out their own precedents, using their own considerable separate and joint experience.

Whatever people’s own experiences of the lower courts in this country, where the administration of ‘justice’ can be haphazard at times (depending on the individual judge, even the mood on that particular day), the Supreme Court is impressive, very impressive.

Stay tuned…

L to R: Diarmuid O'Flynn, Joan Collins TD, David Hall, Catherine Murphy TD