The Private Law Discussion Group in the School of Law, Trinity College Dublin, is delighted to welcome Dr Niamh Connolly (University College London) next Thursday, 30 March 2017, at 2:00pm, in the Trinity Research in Social Sciences (TRiSS) Seminar Room, 6th floor, Arts Building, TCD (map), to give a paper on
The Future of Restitution in Ireland.
All are welcome, particularly those with a research interest in private law, unjust enrichment and restitution. This event is open to the public and free of charge. If you would like to attend, please register on Eventbrite.
Dr Niamh Connolly (pictured right) is a lecturer at University College London, where she moved from Trinity College Dublin in 2016. Her principal research and teaching interest is in unjust enrichment law. She is interested in how Irish private law compares to that of England and Wales, and in differences in legal culture that affect the substantive law in these jurisdictions. Her paper will seek to interpret the sparse Irish case law on unjust enrichment in light of this wider question about the specificity of Irish law. In particular, Niamh will ask whether Irish legal culture is less formalist than that of England and Wales, and if so, how that affects Irish restitution law. Niamh hopes that the seminar will provide an opportunity to hear the views of other Irish jurists as to the possible distinctiveness of Irish judicial approaches in private law.
The Private Law Discussion Group is a Research Group in the School of Law, Trinity College Dublin, which invites collaboration and engagement nationally and internationally on private law, including property law, tort, contract, restitution, and unjust enrichment.
The event will be chaired by the Hon Ms Justice Mary Finlay Geoghegan, Judge of the Court of Appeal; and the speakers will be Bruno Gencarelli (Head of the Data Flows & Protection Unit, DG Justice & Consumers, European Commission), Andreas Carney (Partner, Matheson), Emily Gibson BL (Law Library, Dublin), and me.
The event is open to all and is free of charge to ISEL members (there is a €30 charge for non-ISEL members, payable on arrival). Places are limited and will be allocated on a first come, first served basis. Please register for the event at www.isel.ie. 1.5 CPD points are available for this event.
The title of my talk is: The Right to be Forgotten – is it time to teach the world to sing in perfect harmony? I will consider whether delinking in support of the right to be forgotten [R2bF] ought to have worldwide effect. My talk will be in three brief parts. The first part will consider CJEU R2bF caselaw and member-state developments on the question whether an R2bF delinking derived from EU law should be effective worldwide or just inside the EU. Against this backdrop, the second part of the talk will argue that the Circuit Court decision Savage v Data Protection Commissioner & Google (Circuit Court, unreported, 11 October 2016, Sheahan J; pdf via DPC) mis-applied the R2bF. Third, combining the first and second parts, the final part of the talk will consider the proceedings in Google v Equustek Solutions (hearing 5 December 2016; webcast), in which the Supreme Court of Canada was invited to uphold an injunction (2015 BCCA 265) that an R2bF delinking derived from Canadian common law and constitutional considerations should be effective worldwide.
A fascinating post on Daniel O’Connell and free speech was published on the excellent Irish Philosophy website last Monday, in honour of Daniel O’Connell‘s birth on 6 August 1775, near Cahirciveen, Co. Kerry; here’s an extract (emphasis added):
Given his political philosophy, it is not surprising that Daniel O’Connell was a champion of free speech. … [At] the Monster Meetings of the 1840s, … huge crowds gathered to hear O’Connell speak. … Though the meetings were orderly, the government grew worried trouble would break out. Sir Robert Peel outlawed the next Monster Meeting, planned for Clontarf on 8 October 1843. Though O’Connell called off the rally, he was still arrested and charged with conspiracy.
O’Connell spoke in his own defense, pointing out the “conspiracy” was neither secret nor criminal, arguing that calling such a movement as his a conspiracy would prevent improvement of any institutions …
Do not attempt to take away from your fellow subjects the legitimate mode of effecting useful purposes by public meetings, public canvassing — speaking bold truths boldly and firmly.
O’Connell was found guilty … The verdict was appealed to the House of Lords, reversed, and O’Connell left prison after three months, a hero in the fight for freedom of speech.
On the trial, see Report of the Irish State Trials, 1844 (Google Books).
On O’Connell generally, see Patrick Geoghegan King Dan: The rise of Daniel O’Connell, 1775-1829 (Gill and Macmillan, Dublin, 2008 | Amazon) and Liberator: The life and death of Daniel O’Connell, 1830-1847 (Gill and Macmillan, Dublin, 2010 | Amazon).
The Irish Council for Civil Liberties (ICCL) seminar on the Constitutional and Human Rights Implications of BREXIT, North and South this evening at 5:00pm in the Distillery Building, Church Street, Dublin 7 (map via here). It’s something I’ve blogged about here, here, here and here. Since then, the UK Supreme Court has handed down its judgment in R (on the application of Miller) v Secretary of State for Exiting the European Union  UKSC 5 (24 January 2017). I wrote an OpEd on the case in the Irish Times the following day:
There will be lasting consequences in London, Brussels, Belfast and Dublin
Many of the myths about the United Kingdom’s constitutional settlement were on show in Tuesday’s decision by their supreme court that the UK government needs an act of parliament to begin the process of leaving the European Union.
The first myth is that the UK does not have a constitution. True, it does not have a written constitution, but it does have a wide range of conventions, customs, usages, principles and practices which embody the UK’s constitutional settlement. Tuesday’s decision concerned the nature and extent of those principles.
The second myth is that parliament is supreme above all other sources of power or authority. True, legislation enacted by parliament cannot be struck down on foot of UK constitutional doctrines, but there are many checks upon parliament’s freedom to act. Parliament is often simply subservient to government, which frequently acts without parliamentary leave. Tuesday’s decision restated the balance between parliamentary supremacy and governmental autonomy.
The third myth is that the queen’s role is largely ceremonial. True, there are now very few substantive royal powers which are exercised by the monarch, but this is because they are exercised by the government instead. This royal prerogative is one of the core principles of the UK’s unwritten constitution, and it provides an important means by which government can act autonomously of parliament.
The conduct of international relations is a central element of the royal prerogative, and it means that the government can conclude and withdraw from treaties without the involvement of parliament. On the other hand, the rights of UK citizens and residents are matters for parliament, and they cannot be affected by the government’s exercise of the royal prerogative. In Tuesday’s decision the majority held that withdrawal from the EU was not just the conduct of international relations, it also affected the domestic rights of UK citizens and residents.
Consequently, the government cannot rely on the royal prerogative but instead needs an act of parliament to begin the process of leaving the EU.
This decision will have deep legal and political repercussions not only in London and Brussels, but also in Belfast and Dublin.In particular, it brings short-term clarity but does little to dispel long-term uncertainties.
In London, the decisive reaffirmation of the supremacy of parliament means that Brexit requires legislation, but the judgment does not prescribe any particular form or substance for it. In the short term there is a great deal of politics to be done by government in presenting the necessary bill, and by parliament in considering – and ultimately passing – it. In the long term, the judgment will be a constraint on the government’s freedom of movement independently of parliament.
In Brussels, there will be some relief that the constitutional requirements by which the UK can withdraw from the EU have been clarified. However, this decision on a matter of UK law says nothing about the EU side of the equation, which is governed by article 50 of the EU Treaty. Many aspects of that article remain unclear, and Tuesday’s decision did not seek clarity about it from the Court of Justice of the European Union (CJEU).
In Belfast, the Assembly will not need to be consulted by the UK government before starting the article 50 process. Tuesday’s judgment held that relations with the EU are a matter for Westminster, and not for the devolved assemblies. In the short term this will not add a further fly to the Stormont electoral ointment. However, in the long term, a political – if not a legal – role for the devolved assemblies in the article 50 process is not precluded by the judgment and cannot be ruled out.
In Dublin, Tuesday’s decision makes it much more likely that the case being brought here by UK lawyers including Jolyon Maugham seeking clarification of article 50, will get off the ground. The Government here will then have to decide not only how to conduct the Brexit negotiations in Brussels alongside the other EU states, but also how to respond to that litigation.
If, in that case, it objects to a reference to the CJEU on the question of whether the UK government can revoke the process of withdrawal, it will doubtless mollify the UK government, but likely annoy our EU partners who would probably welcome certainty on this issue. Tuesday’s decision has brought closer the dread day when the Irish Government will have to choose between standing by the UK and cleaving to the EU.
Finally, Tuesday’s judgment is a strong avowal that, in parliamentary democracies, governments cannot act independently of parliaments. It may have been couched in dry and careful legal language, but it is the stuff of which constitutional myths and political realities are made.
After Protest, Society for International Affairs Cancel Event with Israeli Ambassador (from the University Times)
Trinity College Dublin event involving Israeli ambassador cancelled (from the Irish Times)
Update (21 Feb 2017): Planned talk by Israeli Ambassador at Trinity College is cancelled after protests (from theJournal.ie)
I don’t have time to write a considered post about this right now, but I could not let it pass unremarked, so I will content myself for the time being with noting: oh no, not again.
Update (23 Feb 2017): The protest and cancellation garnered headlines in Israel (Algemeiner | Jerusalem Post | Jewish Press | Times of Israel here and here) and further afield (Yahoo! news – even Breibart, with typical hyperbolic misrepresentation)
The University Times updated their piece and headline: After Event with Israeli Ambassador Cancelled, Trinity Criticises “Unacceptable Attack on Free Speech”; the Irish Times ran a follow up: Trinity condemns ‘unacceptable attack’ on free speech; and the Hearld also ran a story: Anti-Israel protest is ‘antithesis of what Trinity stands for’. These pieces refer to a statement from the Provost:
Trinity College Dublin regrets attack on free speech
Dublin, Tuesday February 21st 2017 – Trinity College Dublin regrets that Israel’s ambassador to Ireland, HE Ze’ev Boker, was unable to take part in a question and answer session on Monday evening after protesters from inside and outside the university threatened to disrupt the event. The university regards what happened as an unacceptable attack on free speech.
Ambassador Boker had been due to address a student society on Monday but the event was cancelled before he arrived at the proposed venue amid security concerns. University officials had unsuccessfully tried to get the protesters to leave an area surrounding the door to a lecture theatre. The ambassador has been a regular and welcome visitor to Trinity since his appointment. He had dinner in the university earlier in the same evening and attended another event in Trinity last week.
Trinity’s Provost Patrick Prendergast criticised the protesters for preventing a guest from expressing his opinions. “This was most unfortunate and represents the antithesis of what Trinity stands for. Universities should be able to facilitate the exchange of ideas. The protesters have violated that fundamental belief. Trinity will remain a home for debate and we will do everything possible to make sure that efforts to suppress the free exchange of ideas do not succeed. I look forward to welcoming Ambassador Boker back to Trinity to speak again in the near future.
I have written on this blog in the past about university free speech rankings in the UK and the US. The online current affairs magazine, spiked, has published its third annual Free Speech University Rankings (FSUR) of the UK’s universities (THE | The Tab | The Times here and here):
… it paints a grim picture. Our survey, ranking 115 UK universities using our traffic-light system, shows that 63.5 per cent of universities now actively censor speech, and 30.5 per cent stifle speech through excessive regulation. This marks a steady rise in censorship over the past three years. Now only six per cent of UK universities are truly free, open places.
Tom Slate, Deputy Editor of spiked, and co-ordinator of the survey, comments:
For anyone who’s been anywhere near a campus recently, this will come as no surprise. Students’ unions no longer just No Platform the odd edgy speaker – they ban ‘tarts and vicars’ parties and ‘offensive hand gestures’. But what’s perhaps most striking in this year’s findings is how fast universities are catching up. Though SUs are still far more censorious than universities, 23.5 per cent of university administrations are now ranked Red, compared with 15 per cent just last year.
The Foundation for Individual Rights in Education (FIRE) maintain an equivalent survey of US universities; and the Institute of Public Affairs do the same in Australia. These assessments are not the only sources of such dispiriting information. Direct surveys of students on campus in the US (pdf) and the UK (pdf) found that, while students support free speech in principle, many are willing to entertain significant restrictions. In any event, and whatever about Trinity’s return to the Times Higher Education‘s World University Rankings, in my view a green light on these free speech rankings would be a university ranking worthy of the name. If any benefactor out there wants to support similar research for higher education institutions in Ireland, I would be happy to co-ordinate it. Roll up; roll up!
Litigating against Mass Surveillance in the US – The National Security Project at the American Civil Liberties Union
in the Swift Lecture Theatre, Room 2041A Arts Block, Trinity College Dublin (map here), next Friday 10 February 2017 from 6:00pm to 7:00pm. All are welcome to attend, and booking is not required.
The American Civil Liberties Union (ACLU) was founded in 1920 to defend and preserve the individual rights and liberties guaranteed by the Constitution and laws of the United States. Whether it’s achieving full equality for LGBT people, establishing new privacy protections for our digital age of widespread government surveillance, ending mass incarceration, or preserving the right to vote or the right to have an abortion, the ACLU takes up the toughest civil liberties cases and issues to defend all people from government abuse and overreach.
The ACLU National Security Project advocates for national security policies that are consistent with the Constitution, the rule of law, and fundamental human rights. The project litigates cases relating to detention, torture, discrimination, surveillance, censorship, and secrecy. Originally created as an informal working group after the September 2001 attacks, the National Security Project is now at the forefront of virtually every major legal battle relating to national security, civil liberties, and human rights.
Ashley Gorski (pictured, left) is a staff attorney at the National Security Project, where she works on issues related to post-9/11 racial and religious discrimination, torture, detention, and religious freedom. She is a graduate of Yale College and Harvard Law School. Prior to joining the ACLU, she worked at a New York law firm and served as a law clerk to the Hon Jon O. Newman, United States circuit judge for the Second Circuit Court of Appeals, and to the Hon Miriam Goldman Cedarbaum, United States district judge for the Southern District of New York. She is in Dublin to give evidence, about Mass Surveillance in the US, in the case currently before the High Court between the Data Protection Commissioner and Facebook, about current rules by which data is shared between the EU to the US.
You can’t keep the proceeds of a bank error in your favour; and, if you do, you probably won’t be able to get out of jail free
In the board-game Monopoly, one of the cards that you can get by landing on ‘Chance’ is ‘Get out of jail free‘. If you are sent to jail during the game, you can use the card to ‘escape’ immediately, without having to cool your heels for the three turns otherwise mandated by the rules. It is as about a useful guide for life as the its fellow Monopoly ‘Community Chest’ card, which tells you that you can keep the proceeds of a bank error in your favour. Unfortunately, you can’t; and spending it is straightforward theft, as is well illustrated by a story in today’s Irish Independent:
Jail for ‘flabbergasted’ teen who succumbed to temptation after €20k was mistakenly lodged in his account
Karl Smith was due €200
A teenager who had “an incredible temptation presented to him” two days after his 19th birthday when his former employer mistakenly lodged almost €20,000 into account has been jailed for theft.
About $1 million has been recovered but the rest was spent on luxury items, police say
A Malaysian student has been charged in a Sydney court with dishonesty offenses after a bank accidentally gave her a $4.6 million Australian ($4.3 million Cdn) overdraft four years ago.
A mum-of-two accused of going on a €25,000 spending spree after a sum of money was mistakenly lodged in her bank account has been sent for trial
The accused … is facing more than 50 charges of theft, relating to stealing in excess of €25,000 in cash belonging to Bank of Ireland, which had been mistakenly lodged to her account. … The thefts are all alleged to have taken place over a two-week period in March 2013. … The money was allegedly withdrawn … from a number of ATMs across west Dublin.
There are earlier stages of this case here, here, here and here, and the case is still ongoing. [Update (29 Jan 2017): she has pleaded guilty to theft, and the matter has been put back for sentencing in April; see here, here, here and here].
All of these defendants would doubtless wish for a “get out of jail free” card, but it is likely to be as useful as the card that says to keep the proceeds of a bank error in your favour. When the Australian student was asked why she thought she had access to that much money, she said: “My parents give me lots of money”. The Dublin single mum made no such claims, but the satirical site Waterford Whispers has her say that she thought that Bank Of Ireland were finally paying her back for the Bailout. As for the flabbergasted teen in today’s story, he considered the windfall to be the answer to his prayers and “a gift from God”.
As I have said on this site, a bank error in your favour is not a gift from God; an overactive ATM is not santa, and the scrooge bank will have to be repaid; bank errors are not a licence to gamble; and keeping the proceeds of a bank error in your favour can amount to theft, whether the error is from overpayments or overactive ATMs. The moral is clear – Chance and Community Chest cards are not a useful guide to life, however much fun they are when playing Monopoly.