About as much thought for the Constitution, for civil liberties and for European law has gone into Noel Dempsey's bag-tax as you might expect from a parliament which once made it mandatory to muzzle dogs without muzzles. An entire bag-inspectorate has been whistled into existence to ensure that Ireland is henceforth a paradise free of unlicensed bags, with powers of inquiry and inspection Enver Hoxha would have envied.
Now nobody wants thousands of plastic bags fluttering in our hedgerows and bowling around our estates. Aside from the demented bag manufacturer sitting cackling in his mansion as he gazes at videos of all that polyethylene bestrewing the Irish countryside, the consensus is as overwhelming as it could possibly be: plastic bags are bad things.
But being a bad thing doesn't mean we should allow the rule of law to be suspended, or common sense to be flouted. It's not good enough to say that doing something is better than doing nothing. For it is a matter both of proportionality and of what the state may reasonably do in law.
Bag inspectors
The Dempsey bag tax is enforceable only by means of probably unconstitutional legal measures, which would be impractical in a small communist island in the middle of the Pacific, but are merely laughable here. All over the country last week, Government bag inspectors visited shops and counted the number of bags present. In two months' time, the bag inspectors will be back and counting, before demanding from the shopkeepers an explanation for whatever bag discrepancies might arise.
We already know that food bags are exempt from the tax and are uncounted. So is it to be a criminal offence to sell a tin of beans in a food bag? Ah, but a tin of beans is not fresh food; and indeed it is not. But what if you buy a tin of beans and an orange, and put them in one food bag, and a CD and an apple, and put them in another, and some frozen food and a potato, and you put them in yet another bag. . ? Oh, I'm sure you get the picture.
But something else. Is it illegal for a shopkeeper to be in possession of unauthorised plastic bags? Will the Revenue Commissioners decide that if shopkeepers have bags which they have no knowledge of, and which they therefore cannot lawfully charge tax on, then those shopkeepers should be prosecuted? How is the State to prevent shopkeepers charging tax on bags bought in Northern Ireland, and thereby making a vast profit? What if he gives those Northern-bought bags away free, as might be his right in European law? What is to stop him doing that? We have made ourselves subordinate to EU legislation, most especially in matters of trade. How are we to police and prevent the illegal importation of plastic bags, as once we pursued their little cousins, the condom, and still pursue - with fabulous unsuccess - fireworks? Will we have a special Bag Unit in the Garda Síochána, poised to swoop on illegal bag importations across the Border, or a Criminal Baguettes Bureau which will interrogate bag-holders about how they came to own so many plastic bags? The Revenue Commissioners will probably argue that the Government has retained the right to levy tax on individual items. But this is a tax like no other, uniquely unrelated to the intrinsic value of the item being taxed, which is almost nothing.
Disproportionate apparatus
This is a guarantee that there will be both evasion of duty, "illegal" importation, and simple fraud.
For it to work, the State has had to create an apparatus disproportionate to any possible results. All those Kremlin bureaucrats so tragically unemployed since the Berlin Wall came down may now come to Ireland, and find themselves perfectly at home.
In this new Soviet paradise, shopkeepers must keep records of bags acquired, and of bags "sold" or given away. The records must differentiate between bags for fresh foods and other shopping bags. But no records need be kept for reusable bags that are sold for more than 70 cents. And just as complex laws over every tiny item in the Soviet Union created a black economy, the same is likely to occur here.
Unpaid tax collector
For example, since the "re-usable" bags are as defined by the shopkeeper, so he can choose to charge 70 cent for any old plastic bag, or, on the other hand, he can give those 70 cent bags away as he sees fit. After all, any supermarket provides deals which promise that if you buy X you get Y free; are plastic bags to be immune to such offers? Moreover, since such "recyclable" bags remain untaxed by the Revenue Commissioners, the latter will not even know they exist, particularly if the shopkeeper imports them from Northern Ireland. And if he does, can you blame him? Already burdened with horrifying amounts of paperwork for VAT and excise, the shopkeeper is now expected to be an unpaid tax collector who must make two-monthly bag returns to the State.
If he fails to make those returns? The Department of the Environment warns: "Revenue will ensure that early and effective action is taken against those who have a liability to the levy and fail to pay. The usual method of recovery for the levy will be the same for taxes, viz, sheriff enforcement, civil proceedings through the Courts and attachment of third parties. Other enforcement methods will be used if necessary."
Quite. Bad law is invariably defined by the complex and coercive machinery required to enforce it. And this is bad law.