Fintan O’Toole: Our Government should be a fox. It is actually a snake

Knock knock again. Who’s there this time? The inspector. The inspector who? The inspector who has come to ensure you are taking your statutory breaks, and that your working hours conform to regulations. But I’m working from home. Yes and I am obliged to ensure that your conditions comply with the Organisation of Working Time Act of 1997.

This doesn’t happen, of course. But it is the law. Indeed, it is the only law we have to deal with the most sudden change ever in the nature of our working lives.

At the beginning of this year, about 200,000 of us were working from home. Now, it’s about 800,000. It is the job of government to make sure the benefits of this transformation of economic, social and family life go to ordinary working people and are not simply annexed by companies to inflate their profits.

So how has our system of government responded? Essentially, not at all. The law that applies to this whole area dates all the way back to 1997.

Fintan O’Toole: Biden is a Kennedy-era figure come back to heal a wound that never closed

---

Fintan O’Toole: Collapse of Vote Leave gang comes too late to save Brexit-addled Britain

---

Fintan O’Toole: Voters can get Trump out of office and our heads

---

Fintan O’Toole: Knock-knock joke on house parties is a Covid charade

---

In 1997, Ireland On-Line and Telecom Éireann had just launched local connectivity services throughout Ireland. Esat Digifone, Ireland’s second mobile network operator, was launched in March 1997. The Internet Neutral Exchange (INEX), which routes internet traffic, was commissioned in May 1997.

Most European governments and parliaments recognised what was going on, and began to update their laws. Ours didn't

Most people still didn’t even have an email address. Very few direct company employees worked from home. Hence the idea that we could have inspectors calling to every one of them to make sure they were not being exploited.

Even before the pandemic hit, it was obvious that this well-intentioned idea had become antediluvian and unworkable. Last year, 5.4 per cent of workers here reported their home to be their primary place of work, compared with an EU average of 2.9 per cent. Far more people were doing at least some work at home.

Update laws

Most European governments and parliaments recognised what was going on, and began to update their laws. Ours didn’t.

Last week, to its credit, the Labour Party introduced a Bill updating the 1997 Act to protect the right of people working at home not to respond to emails or calls from their employers outside their agreed working hours.

But this is a Private Members’ Bill. Leo Varadkar, for the Government, did not oppose it. Equally, though, he offered little more than the usual reassurances about how his department is “currently examining the Organisation of Working Time Act 1997 in the context of the right to disconnect, to consider deficiencies in the legislative framework that should be remedied”. If you can read urgency into those words, you are more of an optimist than I am.

In a fast world, we have slow governance. Our Government should be a fox. It is actually a snake that lies there, very gradually digesting the issues it swallowed a year – or a decade – ago.

Consider the last week alone. First, we had the news that the conviction of Graham Dwyer for the murder of Elaine O'Hara may be endangered because the European Court of Justice (ECJ) is set to find Irish law on the retention of mobile phone data incompatible with EU law.

But, as Karlin Lillington has repeatedly shown in The Irish Times, we've known this for certain since 2014, when the ECJ explicitly ruled against the State's system of data retention.

‘On shaky ground’

And in fact, as Prof TJ Mac Intyre, Ireland’s premier expert in this area, pointed out (again repeatedly), it was clear even from 2011 that our law in this area was “on shaky ground”. The official response, as he put it in 2015, was to adopt “the ostrich position”.

The democratic system is always lagging behind what is happening in real life

Second, think about the abusive uploading of intimate pictures of Irish women without their consent. Labour has had a Bill outlawing so-called “revenge porn” before the Oireachtas since 2017, going nowhere. Now, it’s suddenly urgent and the Government is promising action.

Third, look at the whole Séamus Woulfe mess. Here's the report of the All-Party Committee on the Constitution: "A Judicial Council should be established to draw up a judicial code of ethics." This in turn would create a new system for the removal of an errant judge.

The year? 1999. The last bloody century. And this wasn't even controversial – the taoiseach at the time, Bertie Ahern, agreed with it, as did the opposition. The Judicial Council was established exactly 20 years later. It has not yet drawn up its code of ethics. Hence, we stumble close to a constitutional crisis.

Wages of inertia

This is just one week’s worth of the wages of inertia. Things that everyone knows need to be done drift on for three, six, 20, or 23 years. Then the inevitable crises and scandals emerge and “something must be done”.

The system has to change. It doesn’t work because the Oireachtas is a prisoner of the government of the day and Irish governments are addicted to crisis management. Our parliament doesn’t really make laws – it just passes them.

In a time of rapid change, this is not just grossly inefficient. It is a danger to democracy. It means that the democratic system is always lagging behind what is happening in real life. If it doesn’t catch up, it will hear the knock of something much more sinister at its door.