TCD Professor of Law Gerry Whyte believes he has the secret to lobbying governments on pressing social issues
By Paul Caffrey
With public anger at fever pitch about everything from housing and homelessness to climate change and childcare, it seems we’re never too far from a major traffic-stopping protest.
But with a huge Sinn Féin vote at the weekend having upended our long established political system in what’s being termed an “earthquake” election, is turning up at the ballot box every five years the only real power we have as a people? Or can good old-fashioned people power really work?
Is activism on big issues such as third-level education funding, soaring rents, mental health provision or hospital waiting lists a waste of time?
Having won the largest share of first preference votes in General Election 2020, it’s clear that Mary Lou McDonald’s party rode a wave of frustration on a number of those issues. It’s certainly a shot across the bows for the establishment – with a number of Dáil stalwarts like Transport Minister Shane Ross and Social Protection Minister Regina Doherty losing their seats. Yet, Sinn Féin’s potential role in any new government isn’t yet clear.
But, apart from casting “protest votes” in elections, what else can we do?
According to the co-author of book Judicial Power In Ireland, Trinity College Dublin Professor of Law Gerry Whyte, ordinary citizens who “create a storm” over a pressing social issue have the best chance of bringing about real change.
Last Wednesday, more than 20,000 protesters brought Dublin city centre to a temporary standstill over what they called the “absolute crisis” in childcare provision. But their timing was questionable as the Dáil was already suspended pending the election.
Canadian academic Nick Srnicek has robustly questioned the power of marches, protests and other methods of what he terms “folk politics” in a 2015 book he co-authored with Alex Williams, Inventing The Future: Postcapitalism and a World Without Work.
Discouragingly, the pair claim: “This is politics transmitted into pastime – politics-as-drug experience, perhaps – rather than anything capable of transforming society.”
But seasoned Dublin-based law lecturer Gerry Whyte has a different take – and a few tips for any potential changemakers.
Well co-ordinated campaigns on multiple fronts are far more effective than using any single method in isolation, such as staging a street protest or taking the Government to court, Whyte says.
In an interview with TheCity.ie, the TCD academic said: “The idea that litigation can always solve a problem is a little bit naive.
“If you can create a big enough storm about something – and create an impression that there’s a lot of interest on a particular topic – that should get politicians motivated to do something.”
He suggests you might start a petition and/or fundraiser, get the media on your side and march to the national parliament to voice your ire.
The legal expert also recommends getting a specialist pressure group on your side and asking them to lobby TDs for change.
While you can sue the State, top judges have far less power to deliver change than you might imagine – even if you win, Whyte asserts.
He suggests that you shouldn’t bother suing the State unless your writ is “in conjunction with political action” to put extra pressure on the powers that be.
However, those mounting a wide-ranging campaign should ideally have “a profile of being politically active in terms of voting,” as politicians will always “respond to a fear of losing their seat,” he said.
“It has to be a group that’s likely to vote and have a significant impact in elections.
“Politicians have an interest in responding to people in the status quo; they have less interest in people on the margins,” the academic added.
This was certainly true in 2008 when thousands of pensioners angrily marched on the Dáil over a Budget Day decision to abolish the automatic right to a medical card for the over 70s.
The activism of the so-called Grey Army of 15,000 demonstrators forced the Fianna Fáil government of the day into one of the biggest political U-turns in the State’s history.
And public uproar over water charges also led to a victory for taxpayers when that scheme was axed in 2017 and our money refunded.
Whyte’s contribution to Judicial Power in Ireland explores the power struggle between our national parliament, the courts and the people when important policy changes are crying out to be made.
Over the past 40 years, the right-to-die of the terminally ill, transgender rights and other controversial social problems have been considered by the courts.
But even when the courts ruled in favour of the claimants, those positive decisions have been “frustrated by delay or inaction” in the Dáil, the book points out.
Only painfully slow – or non-existent – legislative change followed key court rulings in a number of high-profile cases because our ruling politicians dragged their heels.
For example, Supreme Court judges rejected MS sufferer Marie Fleming’s right-to-die action in April 2013 – but urged legislators to make new laws to help others in the future.
The Wicklow woman died in December 2013 – but to this day, such laws are still only being discussed.
In other cases where urgent social change was ordered by the courts, governments have left the law unaltered for up to 15 years afterwards, according to the 2018 academic tome.
Unless our TDs simply don’t object to a court’s decision – or are left with “no real choice” in the matter – they are unlikely to change existing laws with any urgency at all, Whyte claims.
Indeed, in recent decades, politicians have often failed to obey court orders from top judges for changes in the law in any timely manner.
For example, in 2007, transgender dentist Lydia Foy, from Athy, Co. Kildare, won her landmark High Court action to be recognised as a woman, having first gone legal in 1997.
Dr Foy couldn’t amend her birth certificate to reflect her gender identity without the government introducing new laws.
Incredibly, it took until 2017 to get the crucial Gender Recognition Bill introduced, which has benefited about 50,000 people in Ireland.
And this only happened after Foy returned to court to sue the State for compensation over the long delay.
So if you want the Government to take action, then it seems you need to do more than just go to court.