The Tánaiste and Minister for Justice has today published the Scheme of Judicial Appointments Commission Bill 2016 (press release | Scheme (pdf)) to deliver on the commitments in the Programme for a Partnership Government to reform the system for judicial appointments. The Scheme provides for a new Commission for Judicial Appointments, including a lay chair and a lay majority. The lay members of the Commission will be selected by the Public Appointments Service, which will also select the Chairperson. The Commission will make recommendations to the Government for appointment to judicial office, and a sub-committee of the Commission will prepare codes of practice dealing with selection processes.
This is a thoroughly welcome development, which I will analyse in detail on this blog at a later date. For now, in this post, I want to focus on two innovations, relating to guiding principles to apply in the judicial selection process, and to the eligibility of academics. First, Head 5 of the Bill proposes “guiding principles” to apply in respect of the selection of persons for recommendation for appointment to judicial office:
- the necessity that any persons appointed to judicial office will be required to be independent in the exercise of their judicial functions and subject only to the Constitution and the law,
- the principle that any person to be appointed to judicial office should be appointed on merit,
- the objective of gender balance in the judiciary,
- the desirability that, to the extent feasible and practicable, the membership of the judiciary should reflect the diversity within the population as a whole, and
- the necessity to apply, to the greatest extent possible, best international practice and relevant international instruments and conventions relating to judicial appointments.
These are matters to which I will return at a later date on this blog; meantime, on the issue of diversity in principle 4, see Laura Cahillane “Judicial Diversity in Ireland” (2016) 6(1) IJLS 1 (pdf); 2016 IJLS.ie (html).
The second innovation I want to mention here is in Head 26 of the Bill, which provides that legal academics may be considered for appointment:
(1) In this Head “legal academic” means a full-time, permanent member of the academic staff of an educational establishment mentioned in subsection (2).
(2) For the purposes of subsection (1), “educational establishment” means—(a) the Honourable Society of King’s Inns,
(b) the Law Society,
(c) a university to which the Universities Act 1997 applies, and
(d) an educational establishment providing education and training for the solicitors’ and barristers’ professions, as prescribed by the Minister on foot of recommendations made by the [Legal Services Regulatory] Authority pursuant to section 13* of the Legal Services Regulation Act 2015.(3) The provisions of this Head shall only apply to a legal academic who has qualified as a barrister or as a solicitor, whether or not that person has practised as a solicitor or as a barrister.
(4) A person who is for the time being a legal academic of not less than twelve years’ standing shall be qualified for appointment as a judge of the Supreme Court, the Court of Appeal, the High Court, the Circuit Court or the District Court …**
(5) A person of such standing will have been employed as a legal academic for a continuous period of not less than two years immediately before such appointment (4) a legal academic.
(6) The Commission shall not recommend to the Minister for appointment to judicial office a legal academic unless he or she satisfies the requirements b., c., d., and e. of Head 22 and unless he or she has displayed in his or her role as legal academic a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned.
[* The text refers to section 12 of the Act, but this must be a typo for section 13.
** I’ve omitted an unnecessary repetition here.]
I have been arguing in favour of this development for quite some time (here, here, and here) and even went so far as to draft possible a legislative provision to achieve that end. This time last year, then-Senator Seán Barrett proposed that provision as an amendment to a Bill relating to the courts which was then before the Seanad. He withdrew the amendment when then-Minister of State at the Department of Justice and Equality, Aodhán Ó Ríordáin TD said that “the eligibility of legal academics for judicial appointment, is one of a wide range of matters included within the scope of the review” of judicial appointments then being considered by the Department. I was disappointed that no equivalent to Head 26 appeared in the Judicial Appointments Commission Bill 2016 published in October by Fianna Fáil, and I am thrilled that Head 26 is the result of the Department’s consideration on that issue.
A quick comparison of Head 26 above and the 2015 amendment is instructive. The definitions of “legal academic” in sub-Head (1) above, and of “educational establishment” in sub-Head (2) above, are in exactly the same terms as those proposed in the 2015 amendment. Sub-Head (3) above is very similar to, and achieves exactly the same end, as the equivalent subsection in the 2015 amendment. Sub-Heads (4) (5) and (6) together constitute a much simpler means of achieving exactly the same ends as those proposed in the equivalent sections in the 2015 amendment. Those sections had to be drafted to amend a range of previous legislation, whereas the sub-Heads above can be shorter because they interoperate with other Heads of the Bill, and they are all the better for that.
Finally, as the note to Head 26 says:
This section addresses the position of legal academics attached to recognised institutions; some contributions to the consultations process note that it was an anomaly that persons with considerable experience in such areas as teaching in the law, legal research and as authors of academic legal texts could not be considered for appointment as judges.
In some other jurisdictions experience as an academic in law fields in a university and similar institution is reckoned as relevant experience for the purpose of appointment to judicial office.
I completely agree; and the day when my fellow academics are appointed to the Irish bench cannot come quickly enough.
It is a rare provision of a Treaty, or a constitution, or an Act, that achieves fame or notoriety simply by means of its number. The First Amendment is so famous the world over that we do not need to be told that it is a clause in the Bill of Rights to the US Constitution. Section 31 was once just as notorious in Ireland. Rapidly joining this pantheon is Article 50. It is an Article of the Treaty on European Union, inserted by the Treaty of Lisbon, to provide a mechanism by which a Member State may withdraw from the EU. It has been plucked from the obscurity of an EU Treaty and thrust into the glare of worldwide headlines by the UK referendum on 23 June 2016 in which the majority of participants voted to leave the EU.
The interpretation of Article 50 has provoked much political and legal discussion, but little consensus. Indeed, I have commented twice on this blog (here and here) on the question whether a notice served by the UK under that Article may be suspended or withdrawn. Only the Court of Justice of the European Union (CJEU) can answer that question authoritatively. Writing in today’s Irish Times, Jolyon Maugham QC of Devereux Chambers, London, makes an intriguing suggestion as to how the CJEU might come to provide that answer:
A legal decision that article 50 is revocable would allow for change of mind about leaving
… In a wide ranging interview with London’s Financial Times, Koen Lenaerts [President of the CJEU] observed there are “many, many different ways” that Brexit could end up before him. … if the UK courts will not refer the revocability of article 50 to the European Court, might the Irish courts? They could and they should.
[links and emphasis added]
Apart from the political and practical concerns with this suggestion, there are at least two big legal questions here – Maugham’s “could”, and Maugham’s “should”. As to “could”, how could the Irish courts come to make a reference to the CJEU on the issue of the revocability of Article 50? What is the nature of the case that poses the question? What are the facts that compel the High Court in Dublin to make the reference? Who are the parties (plaintiff(s) and defendant(s))? What is the plaintiff’s cause of action? What remedies does the plaintiff seek? One of the many lessons of Re McCord  NIQB 85 (28 October 2016) and R (Miller and dos Santos) v Secretary of State for Exiting the European Union (Rev 1)  EWHC 2768 (Admin) (03 November 2016) is: cometh the hour, cometh the cases. I can see the outlines of at least four possible cases; doubtless there are others; [update: a potential fifth, which is already before the courts, was drawn to my attention on twitter here and here]; indeed, if a case in the High Court does end up making a reference to the CJEU, I would not be at all surprised if it were to be founded upon an entirely different set of facts. Read more
There will be a public lecture by Professor Philippe Sands QC on
East West Street: A Personal Take on the Origins of Genocide & Crimes against Humanity
on Wednesday, 30 November 2016, at 7:30pm, in the Edmund Burke Lecture Theatre, Room 1008 Arts Building (map here), Trinity College, Dublin. All are welcome to attend.
Professor Philippe Sands QC is Professor of Law and Director of the Centre on International Courts and Tribunals at University College London, and a practising barrister at Matrix Chambers, London, specialising in international law.
His book East West Street: On the Origins of Genocide and Crimes against Humanity (Weidenfeld & Nicolson, 2016 | Amazon) won the 2016 Baillie Gifford Prize for non-fiction. Robert Gerwath, reviewing it in the Irish Times, said that it was “a rare book” that “adds genuinely new insights into the war or its legacies”, and “succeeds in bringing the subject to life even for those not primarily interested in the evolution of legal concepts”. Sands has been involved in a number of high profile law cases and has published extensively. He contributes frequently to The Guardian, Financial Times, London Review of Books and Vanity Fair. His book East West Street formed the basis of the documentary film My Nazi Legacy: What our Fathers Did (2015 | imdb).
This lecture is part of the Sydney Gruson lecture series organised by the Herzog Centre in the Department of Near and Middle Eastern Studies, Trinity College Dublin, and the Holocaust Education Trust Ireland.
I noted yesterday that publication of the Copyright and Related Rights (Miscellaneous Provisions) Bill 2016 has come a few steps closer. From the perspective of education, the Bill will implement the Marrakesh Treaty to facilitate access to published works for persons who are print disabled, facilitate distance learning and access to education over the internet, extend copyright exceptions to promote non-commercial research, and affirm that libraries, archives and educational institutions may make copies of works in theirs collection for preservation and exhibition purposes. The Bill will also extend “the existing copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis”. Other countries (such as the UK and most other EU countries, Australia, Canada and New Zealand) have extended legal copyright deposit to digital and online publications, but no-one is systematically capturing Ireland’s .ie web domain, and it is on that issue that I want to focus in this post.
The first question is: what is legal copyright deposit? It is the ubiquitous statutory obligation (in Ireland, pursuant to section 198 of the Copyright and Related Rights Act, 2000 (also here) on publishers and distributors to deposit at least one copy of every print publication, free of charge, in designated (pdf) legal copyright deposit libraries. Read more
In August, the Minister for Jobs, Enterprise and Innovation announced that the Government had approved the drafting of a Copyright and Related Rights (Miscellaneous Provisions) Bill 2016. No timetable was provided at that stage. Nor was one provided in the Government’s Autumn Legislative Programme which was published in September. That Programme simply said that the Bill had been referred to the Joint Committee on Jobs, Enterprise and Innovation, but the Bill was not listed for pre-legislative scrutiny by the Committee. Now comes news that, following a briefing by officials of the Department of Jobs, Enterprise and Innovation, the Committee decided that it would not undertake pre-legislative scrutiny of the Copyright Bill (see the Committee’s Work Programme (pdf) s3(c), p5; h/t @johnjcarroll). Whilst it is a pity that the Committee will not afford a first opportunity to point out some concerns with the Minister’s current approach, this does have the advantage of bringing the publication of the Bill itself a few steps closer. Perhaps it might not be too much to hope that copyright reform in Ireland might get a Christmas present this year?
John Naughton began a classic column, on the world of university research being held to ransom by academic publishers charging exorbitant prices for subscriptions, by quoting Sir Patrick Cullen’s observation in George Bernard Shaw’s play The Doctor’s Dilemma that “All professions are conspiracies against the laity”. Then he continued:
To update the observation for a contemporary audience, simply replace the term “professions” with “publishers of academic journals” and you’ve got it in one. For, without the knowledge of the general public, a racket of monumental proportions has been milking the taxpayer for decades.
Most rackets can be prevented by good legal regulation. And a Bill that has just been given a very high chance of enactment demonstrates how that regulation might work. In this post, I want to explain the racket and the Bill, and then show how the legislative strategy in the Bill might provide a regulatory solution to the racket.
2. The Racket
Naughton explains the racket this way:
If you’re a researcher in any academic discipline, your reputation and career prospects are largely determined by your publications in journals of mind-bending specialisation … Everything that appears in such journals is peer-reviewed – that is to say, vetted by at least two experts in the field. … In any major scientific field, success depends on getting your articles published in such high-impact journals.
And not just personal success, either: under the research funding arrangements now in place in the UK and elsewhere, the survival of entire university departments depends on the publication records of their leading academics. So academia has become a publish-or-perish world.
This gives enormous power to outfits like Elsevier that publish key journals. And guess what? They wield that power [with high annual subscriptions] … The result is that unconscionable amounts of public money are extracted from our hapless universities in the form of what are, effectively, monopoly rents for a few publishers. …
But it’s not just the exorbitant subscriptions that stink; it’s the intrinsic absurdity of what’s involved in the academic publishing racket. Most publishers, after all, have at least to pay for the content they publish. But not Elsevier, Springer et al. Their content is provided free by researchers, most of whose salaries are paid by you and me.
The peer reviewing that ensures quality in these publications is likewise provided gratis by you and me, because the researchers who do it are paid from public money. … And then the publishers not only assert copyright claims on the content they have acquired for nothing, but charge publicly funded universities monopoly prices to get access to it. …
There will be a public lecture on the Rule of Law and Asset-Grabbing (Reiderstvo) in Russia in the Neill Theatre, Trinity Long Room Hub, Trinity College Dublin, on Tuesday 15 November 2016, at 3:00pm.
Reiderstvo (asset-grabbing) is the illicit acquisition of a business or part of a business in Russia. A recent report on The Rise of Reiderstvo: Implications for Russia and the West (pdf) by Dr Louise Shelley and Ms Judy Deane analyzes this corrosive phenomenon. The report will be presented by Prof Louise Shelley (George Mason University); there will be a reply by Prof Neil Robinson (University of Limerick); and there will be ample opportunity for questions and answers. The event will be haired by Dr Ann Power-Forde SC (former judge of the European Court of Human Rights).
The first comprehensive examination of its kind, the report on The Rise of Reiderstvo: Implications for Russia and the West analyzes the evolution of business raiding and asset grabbing in Russia. It identifies the methodical tools and tactics used by business raiders and provides concrete examples of heretofore unexamined cases inside Russia, documenting the “playbook” for systematizing asset grabbing.
Prof Louise Shelley is the Omer L and Nancy Hirst Endowed Chair and a University Professor at the Schar School of Policy and Government, George Mason University. She is the founder and Director of the Terrorism, Transnational Crime and Corruption Center (TraCCC) at George Mason University. Her latest book is Dirty Entanglements: Corruption, Crime and Terrorism (Cambridge University Press, 2014). She is at present an inaugural Andrew Carnegie Fellow and a Rockefeller Foundation Residence Fellow writing her current book on illicit trade and sustainability for Princeton University Press.
Prof Neil Robinson is Professor of Comparative Politics at the University of Limerick. His research interests focus on Russian and post-communist politics, particularly the political economy of post-communism and post-communist state building. He is the author of Ideology and the Collapse of the Soviet System. A Critical History of Soviet Ideological Discourse (Aldershot and Brookfield, VT: Edward Elgar, 1995), and Russia: a state of uncertainty (London and New York: Routledge, 2002 (download))
Dr Anne Power-Forde SC was a judge on the European Court of Human Rights, Strasbourg from 2008 to 2014, and is now a member of the Bar of Ireland and of Doughty Street Chambers in London. On the ECHR, she was confronted with many of the most pressing concerns of our time – the legacy of the invasion of Iraq, the annexation of Crimea and other threats to European democracy, the consequences of global terrorism, the refugee crisis in the Mediterranean, the legacy of European genocide and the individual’s search for meaning and autonomy. She has lectured extensively on the Convention and has written on Judicial Ethics in the Court’s Handbook for Judges. She facilitates in judicial training seminars working with magistrates, prosecutors and advocates in the developing world. As an academic, she has over 20 years’ experience of lecturing in Philosophy and in Jurisprudence. In particular, she has developed a course reflecting upon fundamental human experiences and international human rights law which she teaches on a visiting basis at American and European Universities.
All are welcome to attend. Attendance is free, but booking (here, via eventbrite) is essential.
No, this post isn’t about the notes on the forms to be filled in to apply for a passport, or even about explanatory notes that might appear on the passport itself. Instead, it’s a musical post, (about the National Anthem – the most recent in a series, earlier posts are here, here, here, here and here), based on a letter in today’s Irish Times:
In a queue at Dublin Airport last week, my daughter Alex was curious about music notation on successive pages of her passport and asked me to read the music.
To our surprise and delight, it was the music of our National Anthem. Whoever imagined this subtle celebration of Irish musicality should be congratulated.
The image, above left, via TheJournal.ie, shows some of those notes. I saw this letter in the paper version of the Irish Times, and whilst searching online for the letter on the Irish Times site, and for an appropriate image, I also found the following post on the website of Absolute Graphics – a marketing, design and print company based in Bray, Co. Wicklow:
… The challenge was to design a passport that incorporated cutting edge security features while maintaining and reflecting ‘Irishness’ throughout. The Department of Foreign Affairs and Trade appointed Absolute Graphics (as part of a consortium led by [Security Print Group] DLRS Ltd) to create the new passport from design through to finished product. …
On the design side, we combined the traditional with the contemporary. From the entrance stone at Newgrange to the Aviva Stadium in Lansdowne Road, the design celebrates everything Irish – history, poetry and sport, tradition and modernity. … over 60 different design and security features are employed in the passport.
It’s a prize-winning document, and now another of its many careful design features has charmingly emerged like a Venus from the waves. I join in Keith’s congratulations to Absolute Graphics.