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the Irish for rights

Damages for infringement of data protection rights

ICEL and RIA logos, via their websitesAt the Irish Centre for European Law’s Privacy and Data Protection Conference today (programme pdf) in the Royal Irish Academy, many interesting themes were explored. I want in this post to pick up on one of them, relating to damages for infringement of data protection rights.

At present, the matter is governed by Article 23 of the Data Protection Directive (Directive 95/46/EC) [DPD], which provides

Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered.

On the one hand, this has been implemented in Ireland by section 7 of the Data Protection Act, 1988 [DPA] (also here), which provides that

For the purposes of the law of torts and to the extent that that law does not so provide, a person, being a data controller or a data processor, shall, so far as regards the collection by him of personal data or information intended for inclusion in such data or his dealing with such data, owe a duty of care to the data subject concerned …

In Collins v FBD Insurance plc [2013] IEHC 137 (14 March 2013) [3.6] Feeney J held that section 7 required that plaintiffs “prove that they have, in fact, suffered damage arising from a breach”.

On the other hand, Article 23 has been implemented in the UK by section 13 of the Data Protection Act, 1998. In Google Inc v Vidal-Hall [2015] EWCA Civ 311 (27 March 2015) [105], the Court of Appeal held that, having regard to Article 23, “compensation would be recoverable under section 13(1) for any damage suffered as a result of a contravention by a data controller of any of the requirements” of the Data Protection Acts (emphasis in original; this holding is under appeal).

Speaking at the ICEL conference today, Emily Gibson gave a wide-ranging paper on data protection litigation after the entry into force of the UE’s new General Data Protection Regulation [GDPR]; and Orla Lynskey complemented this with a discussion of data protection enforcement from the perspective of data protection authorities. In this context, Helen Dixon called for the EU’s data protection authorities to work together on such issues.

On the issue of damages, Gibson commented simply that Collins and Vidal-Hall are conflicting authorities, and swiftly pointed out that Article 82(1) GDPR provides that

Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.

Dixon commented that this will provide very powerful new remedies. But this is for the future. What of data subjects who wish, right now, to seek compensation in Irish Courts for current infringement of their data protection rights? I have already argued on this blog both that Collins was wrong in its own terms, and that the reasoning in Vidal-Hall undercuts its analysis of EU law.

But there is a further argument in favour of data subjects’ claims for compensation as the law now stands. It was made by Gary Fitzgerald (Director of the ICEL, and organiser or this today’s conference) at another similar conference in May (programme pdf). His theme was the impact of the decision of the CJEU in Case C-362/14 Schrems (6 October 2015) on the enforcement of data protection rights. Schrems is a (perhaps the) leading CJEU case on the protection of privacy. Today, it was at the heart of of Thomas von Danwitz‘s consideration of the role of the CJEU in privacy law; and coping with the consequences of the decision (and especially the development of the [imminent] EU-US Privacy Shield) were the subject of Bruno Gencarelli’s contribution. At the earlier conference, Fitzgerald argued that one of the fundamental points made by the CJEU in that case is that there must be an adequate level of protection for data protection rights and an effective remedy for infringement of such rights, especially in the light of the Charter of Fundamental Rights [CFR] (see, eg, Schrems [95]). At today’s event, discussing the Privacy Shield, Anne-Marie Bohan made a similar observation. But Fitzgerald went further. In particular, he argued that an effective remedy for breach of CFR privacy and data protection rights, via Article 23 DPD, requires that section 7 DPA be interpreted as broadly as in Vidal-Hall to reach damages for distress, and not as narrowly as in Collins confining the claim to actual harm. In other words, he argued that Schrems reinforces the decision of the Court of Appeal in Vidal-Hall. I agree, and would add that Schrems makes the appeal against the decision of the Court of Appeal even less likely to succeed.

At today’s conference, Michael Lynn provided a thorough guide to the nature and scope of the right to privacy under a great many international and european instruments and the Irish Constitution; and TJ McIntyre argued that Irish surveillance law is incompatible with such standards. At the earlier conference, Fitzgerald also commented on the possible impact of the Constitution on claims for compensation for infringement of data protection rights. He pointed out that Hogan J in the High Court in Schrems v Data Protection Commissioner [2014] IEHC 310 (18 June 2014), making the reference to the CJEU, considered that the constitutional right to privacy was also directly engaged ([20], [43], [47]-[56], [77]-[79]). And he argued that an interpretation of section 7 compatible with the constitutional right to privacy requires a conclusion equivalent to Vidal-Hall rather than Collins. Hence, as a matter both of national law and of EU law, Schrems reinforces the argument that Collins was wrongly decided.

Moreover, Fitzgerald went further still, and argued simply that the Constitution could provide a right to general damages for infringement of privacy rights “because there is a long history of general damages for breach of constitutional rights”. Indeed, in Kennedy v Ireland [1987] IR 587, the first and leading case on privacy of communications, Hamilton P awarded the plaintiffs a total of £50,000 damages for the significant distress that they suffered from the defendants’ infringement of their constitutional right to privacy ([1987] 1 IR 587, 594-595). And in Sullivan v Boylan [2013] IEHC 104 (12 March 2013) Hogan J awarded €15,000 in general damages, and €7,500 in exemplary damages, for infringement of the plaintiff’s constitutional right to privacy. During a Q&A session at today’s conference, Cliona Kimber posed a question about the levels of damages that may be available under DPD or GDPR for infringement of data protection rights. Gibson replied that they are usually modest. I agree – if Kennedy and Sullivan are anything to go by, the levels are not very high (especially by comparison with damages for defamation; see Mosley v News Group Newspapers [2008] EWHC 1777 (QB) (24 July 2008) [212] (Eady J); though note also Representative Claimants v MGN Ltd [2016] 2 WLR 1217, [2015] EWCA Civ 1291 (17 December 2015)).

At today’s conference, Lynskey commented that lack of private enforcement is one of the reasons for widespread under-enforcement of data protection law. As actions for damages or infringement of data protection rights become increasingly recognised as a means of private enforcement, this reason will fall away, and the lot of data protection enforcement should improve. As Jyn Schultze-Melling commented today, our perspectives on privacy are changing, and we are developing a new paradigm for personal data. Nevertheless, there will continue to zones of privacy for which we will still need protection, and remedies for infringement. And it is now clear that such remedies include damages not just for pecuniary but also for non-pecuniary loss, that is to say, not just for actual harm but also for distress.

Is Article 50 a one-way street; can a withdrawing State stop on it, or reverse out of it?

One Way Street via WikipediaIn an earlier post, I argued that there may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU. It has been a small drop in the online torrent of serious analysis of the legal and political consequences of last week’s referendum. My must-reads include Mark Elliott, the UK Constitutional Law Association’s blog, the LSE’s BrexitVote blog, the Brexit Reflections on the blog of the Centre on Constitutional Change in the University of Edinburgh, and the Brexit and Article 50 streams on the always excellent Conversation. It was there that I read a great piece by Phil Syrpis entitled Once the UK triggers Article 50 to start Brexit, can it turn back?. He asks whether the UK can have second thoughts stop the Article 50 process, and he comments

It seems staggering that there is no clear answer to this key legal question.

I could not agree more. Nevertheless, even if there is no clear answer, a consensus does seem to be emerging. In my last post, I said that the House of Lords’ European Committee Paper on The process of withdrawing from the European Union (11th Report of Session 2015–16; HL Paper 138; html | pdf) is an excellent guide to the legal mechanics of the UK’s withdrawal from the EU. As part of the process of preparing that Paper, the Committee held a public evidence session with two EU law experts: Sir David Edward, a former Judge of the Court of Justice of the European Union, and Professor Derrick Wyatt QC, Emeritus Professor of Law, Oxford University; and they both

10. … agreed that a Member State could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect. Once the withdrawal agreement had taken effect, however, withdrawal was final. Sir David told us:

It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.

Professor Wyatt supported this view with the following legal analysis:

There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.

11. Professor Wyatt clarified that “a Member State remains a member of the European Union until the withdrawal agreement takes effect”, so would continue its membership on the same legal terms as before the decision to withdraw.

Syrpis (on the Conversation blog, and also here), with dry understatement, says that seems to him “to be the most sensible view”, and he adds:

Article 50 is not designed to make it easy for a state to leave the EU, and it would surely be interpreted and applied so as to make it easy for a state that, after all, decided that it wanted to remain. So, while the clock does start ticking once the Article 50 notification is made, it is at least possible that the process could be stopped at any stage – at the UK’s initiative. …

If the legal opinions quoted here are correct … it will be possible to stop the process at any stage during the negotiation process, with the UK remaining a part of the EU. That opens up a possibility for parliament, or the people, perhaps in a second referendum, to have a say on the new deal, and to decide, perhaps two or three years down the line, whether we want to remain in the EU, or leave on the terms secured via the negotiations.

This is precisely the conclusion at which I arrived in my previous post, in which I argued that there may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU. If the policy underlying Article 50 is to make withdrawal difficult, then this is the policy on foot of which any purposive or teleological interpretation of the Article must proceed. In my previous post on this issue, I argued that such a teleological interpretation supports the conclusions not only that the process can simply be halted, but also that any automatic withdrawal under Article 50 could be postponed until a withdrawal agreement enters into force, so that if such an agreement never enters into force, automatic withdrawal would not kick in. In this respect, therefore, Article 50 is not really a one-way street; a withdrawing State can stop on it, and may even reverse out of it. These will be difficult manoeuvres (perhaps not as difficult as the multi-point turn in the movie Austin Powers – The International Man of Mystery (IMDB), pictured right), but they are not beyond the ken of Whitehall mandarins and Brussels bureaucrats to perform.

The limits of judicial deference to academic judgment

In my first post yesterday, I took certain comments of Kennedy J in the recent US Supreme Court decision in Fisher v University of Texas __ US __ (23 June 2016) as the context for an analysis of the nature of judicial deference to academic judgment. In this post, I want to look at the limits to such deference. Once those limits have been reached, substantive claims are entertained, even if they often fail (see M Davies “Challenges to ‘academic immunity’ – the beginning of a new era?” (2004) 16 Education & the Law 75).

This is true at both public and private law; and, whilst the public law analysis has dominated the cases (S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1 [hereafter: Hedley]), the line between these two procedures isn’t always clear. On the one hand, in Green v Master and Fellows of St Peter’s College Cambridge (The Times, 10 February 1896; cited in Hedley, 1; jpg) Wills J held that it was “obvious that the relation between an undergraduate and his college was not a contractual one”. Hence, in Jaffer v York University 2010 ONCA 654 (7 October 2010) [26], [28] (blogged here | here) Karakatsanis JA held that judicial review is the proper procedure when seeking to reverse an internal academic decision (approving Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010) [46] (Rouleau jca). She further held that, where a private claim was “simply an indirect attempt to appeal an academic decision”, the “appropriate remedy would be judicial review”. By contrast, in Quinn v Honourable Society of King’s Inns [2004] IEHC 220 (15 June 2004), Smyth J declined to give the applicant leave to challenge an exam grade at public law by way of judicial review, on the grounds that the applicant was not entitled to invoke the public law remedy of judicial review for a private law right arising out of contract, though he also rejected the applicant’s substantive public law submissions as well. Moreover, in Jaffer, Karakatsanis JA went on to consider the claim in tort and breach of contract.

One important set of limits at public law arises where rights – under the constitution, the European Convention of Human Rights (ECHR), or the EU Treaties – are engaged (see, eg, T Kaye “Academic judgment, the university Visitor and the Human Rights Act 1998” (1999) 11 Education & the Law 165). The argument that rights under the ECHR were engaged failed in Patel v University of Bradford Senate [1978] 1 WLR 1488, [1978] 3 All ER 841 (ChD, Megarry VC) aff’d [1979] 1 WLR 1066, [1979] 2 All ER 582 (CA; .doc); (Application 8844/80 (1982) 4 EHRR 256 ECmnHR). The argument that rights under the EU Treaties were engaged also failed in a long-running case (which effectively terminated in Kelly v UCD [2013] IEHC 23 (29 January 2013) after a long and winding trip through the courts, including an application to the CJEU in C-104/10 Kelly (21 July 2011)) in which the plaintiff unsuccessfully alleged that he had not been offered a place on a Masters programme by virtue of discrimination on grounds of gender.

The leading case on this issue is probably Re Croskery [2010] NIQB 129 (8 December 2010) [16] (Treacy J) (blogged here; see also here | here | here | here | here), where the argument that rights under the ECHR were engaged also failed. Treacy J not only afforded deference to the university’s academic decisions, he also held that there was nothing in the caselaw of the European Court of Human Rights to support the proposition that the assessments and/or the procedures for determining disputed degree assessments and classifications fall within the right to a fair trial (.doc) guaranteed by Article 6 ECHR.

Similarly, in Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) the US Supreme Court held that there is no constitutional requirement of a hearing before the exercise of academic judgment. As Rhenquist J put it: “Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information, and is not readily adapted to the procedural tools of judicial or administrative decisionmaking” (435 US 78, 90).

The limitation upon judicial deference to academic judgment by constitutional rights is very well illustrated by the Fisher litigation, where the plaintiff argued that the reliance by the University of Texas at Austin upon diversity as an element of its admissions policy violated the Equal Protection Clause of the Fourteenth Amendment. Read more

There may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU

Brexit, via PixabyI still can’t believe the news about Brexit, and I suspect the same is true of many on both sides of the issue. Since then, there has been much talk about Article 50, and much speculation about the possibility of a second referendum to undo the first. In this brief post, I want to put those two issues together. First, Article 50 is an article of the Treaty on European Union inserted by the Treaty of Lisbon. It is the mechanism by which a Member State may leave the EU. It provides in full as follows (with added links):

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
  4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
    A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
  5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49 [of the Treaty on European Union].

Let us assume that, following the Brexit referendum vote and pursuant to the UK’s own constitutional requirements, the procedure in this Article is triggered, and agreement is reached between the UK and EU on the terms of a withdrawal agreement.

[Revised and updated]: An excellent guide to the process is provided in the House of Lords’ European Committee Paper on The process of withdrawing from the European Union (11th Report of Session 2015–16; HL Paper 138; html | pdf); a clear practical summary of the process is helpfully set out by the BBC EU spells out procedure for UK to leave; and Duncan French provides very clear analysis of the legal implications of the UK’s renegotiation and withdrawal. As to the necessary UK Parliamentary procedures, see Nick Barber, Tom Hickman & Jeff King on Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role and the replies by Carl Gardner’s Article 50, and UK constitutional law and Kenneth Armstrong Push Me, Pull You: Whose Hand on the Article 50 Trigger?.

My question is, could the UK government put that withdrawal agreement to a further referendum, asking in effect if the UK should ratify it and bring it into force? And if it does, is there any route by which a vote to reject the withdrawal agreement and to remain in the EU could be given effect? The terms of withdrawal would be clear, and the choice facing the voters would be more realistic and more focussed than in last week’s referendum. I will leave the politics of this to others, but I will raise here two of the (doubtless many, many) legal issues which arise.

The first issue is whether this is possible from the perspective of the UK’s constitutional requirements. I don’t see why not, but I welcome comments as to whether this is so. As with the current referendum, by virtue of the doctrine of Parliament Sovereignty, it would only be a pre-legislative and non-binding advisory referendum, but Parliament would be very slow indeed to decline to act accordingly.

The second issue is whether this is possible from the perspective of the Article 50 TEU (above). Here, things are a little more opaque. On a literal interpretation of the Article, it does not seem to provide for the suspension of the withdrawal process, but the CJEU has never tied itself to an exclusively literal approach to the European Treaties. Instead, as former CJEU Advocate General and retired Irish Supreme Court judge, Nial Fennelly, explains:

The characteristic element in the Court’s interpretative method is … [the] “teleological” approach, … that it is necessary to consider “the spirit, the general scheme and the wording,” supplemented later by consideration of “the system and objectives of the Treaty.” In more recent years, the idea of “context” has been added, and the prevailing wording, varying minimally from case to case, has been that it is necessary when interpreting a provision of Community law to consider “not only its wording, but also the context in which it occurs and the objects of the rules of which it is a part.”

I suspect that the CJEU would, on this basis, be able to find that the Article 50 process could be suspended or abandoned, but I would not wish to predict whether it would do so. It is a Court often noted for its realpolitik and pragmatism, but there are limits to how far it can or will go to accommodate political agreements. It might perhaps be asked for an advisory opinion on the issue. If the CJEU finds that suspension or abandonment of the Article 50 process is possible, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the suspension or abandonment of the Article 50 process, and if the other Member States – via the European Council – agreed, then the Article 50 process could be suspended or abandoned.

If suspension or abandonment is not possible, then the issue will turn on Article 50, paragraph 2 (above), which provides that the EU Treaties cease to apply to the departing Member State in two circumstances: either on the entry into force of the withdrawal agreement, or two years after Member State notifies the EU that it wished to begin negotiations for withdrawal “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. If a second Brexit referendum were to be in favour of remain, and Parliament therefore indicates its intention not to ratify the withdrawal agreement, the first alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.

More complications arise under the second alternative, by which the withdrawal seems automatic after two years “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. So, the question is: could some form of words be agreed “to extend this period” indefinitely? And even if so, would the CJEU uphold it? Again, I would not wish to predict whether it would, and it might again be asked for an advisory opinion on the issue.

Rather less susceptible to a successful challenge would be a form words that clove more closely to Article 50 and did not expressly say that it would extend the period “indefinitely”. Instead, it might provide that the period would be extended until a withdrawal agreement enters into force. That could – and, in practice, probably would – amount to an indefinite extension, but it would be much closer to the spirit of Article 50, and well within the linguistic flexibility that has been shown in Treaty negotiations in the past. As before, I would not wish to predict whether the CJEU would uphold such a formulation, and an agreement to this effect might form the basis on which it could be asked for an advisory opinion on the issue. If the CJEU approves a form of words by which automatic withdrawal would be postponed until a withdrawal agreement enters into force, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the postponement of automatic withdrawal until a withdrawal agreement enters into force, and if the other Member States – via the European Council – agreed, then the second alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.

I am even less clear on this EU issue than I am on the UK constitutional issue above, and I equally welcome comments as to whether this is legally possible. I leave the question of whether this is likely to the politicians.

Let us therefore assume that the UK would negotiate a withdrawal agreement pursuant to Article 50, and put it to the people in a referendum. Let us further assume that the result in that referendum is in favour of remain, such that the withdrawal agreement is rejected, and Parliament therefore declines to ratify that agreement and bring into force. In such circumstances, my question is this: could the UK rely on an agreement with the other Member States – via the European Council – either that the Article 50 process would be suspended or abandoned, or that any automatic withdrawal would be postponed until a withdrawal agreement enters into force? In either case, the result would be that the Article 50 process would have provided route, via a second Brexit referendum, to ensuring that the UK would not have left the EU. Time may well tell. Meanwhile, answers on a postcard …

The nature of judicial deference to academic judgment

The US Supreme Court, though depleted at present to eight Justices after the death of Antonin Scalia, can still muster majorities in controversial cases.

One of the most controversial issues regularly before the Court (up there with abortion and guns) is affirmative action, especially in college admissions. At the end of last week, in Fisher v University of Texas __ US __ (23 June 2016) the Court held that a race-conscious admissions program in use at the time of petitioner’s application was lawful under the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. In the course of his judgment for the majority, Kennedy J stressed that, in the case of “an academic judgment … some, but not complete, judicial deference is proper”.

In this post and the next, I want to leave aside the (relatively narrow, but – in my view – sensible and precise) holding on the affirmative action issues, and focus instead on the issue judicial deference to academic judgment. In this post, I will consider the nature of such deference. In the next post, I will consider its limits.

In Fisher, Kennedy J held that, once “a university gives ‘a reasoned, principled explanation’ for its decision, deference must be given ‘to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals’,” (citing an earlier stage in the Fisher litigation: Fisher v University of Texas at Austin 570 US __ (24 June 2013); the earlier decision was referred to in the sequel as Fisher I, and the sequel under consideration here is being referred to as Fisher II). This is entirely consistent with earlier US Supreme Court authority. In Board of Curators, University of Missouri v Horowitz 435 US 78 (1978) 90 Rhenquist J held that academic decisions are “not readily adapted to the procedural tools of judicial or administrative decisionmaking”; and in University of Michigan v Ewing 474 US 214 (1985) 225 Stevens J held that “considerations of profound importance counsel restrained judicial review of the substance of academic decisions”.

This judicial deference is afforded whether the academic judgment in question is challenged at public or private law (see, generally, S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1; Read more

Overpayments by ATMs and theft from banks

Money from an ATM, via flickrIn June 2012, a massive IT failure affected all of Ulster Bank’s ATMs, and many customers sought to take advantage by making multiple withdrawals of cash which they did not have in their accounts. As I have commented many times on this blog, in the case of overactive ATMs, overpayments, and theft, 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.

However, in a recent prosecution of a man who managed to withdraw €13,600 from Ulster Bank ATMs during the IT failure, the judge dismissed the case as the prosecution failed to prove Ulster Bank did not consent to the withdrawals, and the State had failed to prove the bank existed. The defendant was charged with 23 counts of stealing cash, the property of “Ulster Bank Ireland Ltd”, and whilst there was evidence of various entities associated with Ulster Bank, the judge held that there was no documentary proof of a properly incorporated legal entity called “Ulster Bank Ireland Ltd” put before the jury, and he therefore directed the jury to acquit the defendant.

The defendant was not the only person in this boat. The bank investigated 100s of cases around the systems fault, around 30 customers were reported to Gardaí, and there already have been successful prosecutions. This directed acquittal will be an one-off; I expect that the proofs in future prosecutions will be more than sufficient.

Some Courts legislation mentioned in the Government’s new legislative programme

Lady Justice, Dublin Castle, via Wikipedia


Lady Justice, Dublin Castle, via Wikipedia

As I have pointed out in two previous post (here & here), the Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers. This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. The Department of Justice will be especially busy – by my count, it has a mammoth 41 of the 97 Bills. Three, in particular, relate to the Courts:

Judicial Appointments Bill
To replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission
Heads expected by end year 2016

Judicial Council Bill
To promote excellence in the exercise by judges of their judicial functions and to provide effective remedies for complaints
about judicial misconduct including lay participation in the investigation of complaints
Heads approved, drafting at an advanced stage

Juries Bill
To reform the law relating to juries
Proposals under consideration

There doesn’t seem to be a Brief for the Minister on the Department’s website, as there was for the incoming Ministers for Jobs, Enterprise and Innovation (which I discussed here; follow-up here), and Education and Skills (which I discussed here; follow-up here). However, that is unsurprising, as there was no change of Minister; but it does mean that there is very little to go on as to the direction in which these three Bills will take. Nevertheless, the first two are long promised, and much is already known about them; the third is more recent, and rather less heralded.

Read more

Some third level legislation mentioned in the Government’s new legislative programme

Wishing HandLast week, under the title Some third level legislation envisaged in the Brief to the incoming Minister for Education, I wrote about the legislative priorities of the Department of Education and Skills, as set out in the Brief (pdf) to that department’s incoming Minister. This post is by way of a short update. As I pointed out in yesterday’s post, the Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers (including the Technological Universities Bill, as discussed by Steve Hedley on Ninth Level Ireland). This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. Two of them relate to matters covered in my post on proposed third level legislation. First, a Higher Education (Reform) Bill is proposed, to modernise the legislative framework underpinning the governance and functions of the Higher Education Authority [HEA] and the governance structures of the universities (see p11). We are told that “Heads are currently being drafted”. Second, a Universities (Amendment) Bill is proposed, to ensure compliance with government guidelines on remuneration, allowances, pensions and staffing numbers in the University sector (see p12). We are told that “Heads [were] approved in October 2012” and that drafting is “underway”.

Read more

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Welcome

Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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The image in the banner above is a detail from a photograph of the front of Trinity College Dublin night taken by Melanie May.

Others whose technical advice and help have proven invaluable in keeping this show on the road include Dermot Frost, Karlin Lillington, Daithí Mac Síthigh, and Antoin Ó Lachtnáin.

Thanks to Blacknight for hosting.