This week’s Economist has a short report (subscription required) to the effect that:

Poland’s governing Law and Justice party is suing the country’s former president, Lech Walesa, for defamation. Mr Walesa called the current incumbent, Lech Kaczynski [official Polish Presidency site (in English) | his own site (in Polish)], a “blockhead” in a row over a report on alleged criminal activity and Russian influence in the country’s now disbanded military-intelligence service.

Read the rest of this entry »

Digital Rights Ireland (of which I am a Director) is making the running against Irish and European data retention legislation (see, for example, Part 7 of the Criminal Justice (Terrorist Offences) Act, 2005 in Ireland, and the EU Data Retention Directive 2006/24/EC).

However, and unfortunately, Ireland is not the only country in which government seeks to compel the retention of its citizens’ traffic data; in fact, the phenomenon of data retention is fast becoming ubiquituous; unsurprisingly, therefore, it’s happening too in the US. The Centre for Democracy and Technology (CDT) has just published an analysis of various bills pending before the Congress (pdf) in which the legitimate aim of the protection of children online is used as cover for alarming government intrusion on all aspects of online life. Given that law enforcement agencies want to be able to monitor significant traffic data (to say nothing of the traffic itself), it is perhaps to be expected that they should attempt to justify that end on this child-protection basis. However, reflecting a CDT report (pdf) of last June on data retention generally, this week’s report cogently summarizes the case against data retention in language as applicable in Ireland and Europe as it is in the US. Read the rest of this entry »

… and belated happy birthday, lex. Today is Samuel Pepys‘ birthday, the diarist (pictured below) hailed by Daithí on lex ferenda a few weeks as an A-list blogger, not long before that blog celebrated its first birthday. Now that Pepys’ diary is being made available as a blog by Phil Gyford, we have no excuse not to revel in the uber-diary of the great(to the n)-grandfather of all bloggers.

Techno-Culture says: Let the blogging begin … again. Nuff said.

The Opinion of the Irish Council for Bioethics, entitled “Is it Time for Advanced Healthcare Directives?” is now available here (the thumbnail, left, is of its cover). It defines “an advance healthcare directive” as a “statement made by a competent adult relating to the type and extent of medical treatments he or she would or would not want to undergo in the future should he/she be unable to express consent or dissent at that time”. It sketches their development in practice and law in the US (from the 1950s) and internationally, and it points out that, in Ireland:

there is no specific legislation in relation to advance directives. The lack of legislation makes the status of advance directives unclear and, as a result, their implementation may or may not be enforced.

The Council noted that advance directives have “been recognised as an expression of an individual’s autonomy and as a useful tool in enabling the individual to maintain some level of control over medical treatment into the future, when he or she might lack the capacity to express autonomous preferences” and for such reasons recommeded providing for their enforceability as a matter of Irish law. The Council makes several practical recommendations as to the form of such directives, storing them, and revoking them. This is all very good and important work.

However, the Opinion contains no draft Bill, and I think this is an unfortunate gap. In recent years, the Law Reform Commission has adopted the practice of embodying their recommendations in a draft Bill appended to the relevant Report, and the Council would with profit have done likewise. It would have made it far more difficult to resist calls for legislation, especially swift legislation as an amendment to the Mental Capacity and Guardianship Bill, 2007.

According to media reports this morning (Irish Times | RTE), the Irish Council for Bioethics will today publish a report on the ethical and legal issues surrounding the structure, content and practicality of implementing advance directives or living wills. This is a very important development, much to be welcomed.

Advance directives or living wills are a statement of someone’s wishes and views regarding matters such as the forms of medical treatment to be administered or not, in circumstances where the person concerned is not in the future in a position to decide or communicate about such matters. They are prepared when the persons concerned are mentally capable to be used when they have lost the capacity to participate in the decision-making process.

The ICB’s call is a timely one. At present, in Irish law, the status of such advance directives or living wills is unclear (see Older People in Modern Ireland, pp 89, 130, 141, 151, 162). They are certainly one factor which decision-makers (such as a next-of-kin, medical personnel, and the courts) take into account, but there is in Ireland no equivalent of the UK’s Mental Capacity Act 2005, which from April 2007 will provide for the enforceability of advance directives. Such a development in Ireland would be an excellent complement to the pending Mental Capacity and Guardianship Bill, 2007, and may even find a ready and speedy home in an amendment to that Bill.

Irish broadcasting regulation is undergoing a significant change, what with the Department of Communications review of the Television Without Frontiers Directive as part of the EU Commission’s proposals for a new Audio Visual Media Services Directive and the Department’s Digital Terrestrial Television trial and its attendant Broadcasting (Amendment) Bill, 2006 (see press releases: BCI; Department). A central plank of all of these changes is the Broadcasting Bill, 2006, and the audience at the Dublin Legal Workshop last week were treated to a discussion of its strengths and weaknesses by David McMunn (pictured above left) Director of Government, Regulatory and Legal Affairs for TV3.

Establishing a commercial broadcast sector in competition with RTE in Ireland must have seemed a slow process. Read the rest of this entry »

The appointment of Dr Carol Coulter as Family Law Reporter was welcomed here last October. Today’s Irish Times (both on the front page and in a special report inside) reports that she has now produced her first report, under the title used in the title to this post. Thanks, Carol, for shining such important light on crucial, if heretofore opaque, aspects of our justice system.

This comes on the day when there is significant coverage of the government’s plans for a referendum on children’s rights (eg RTE (Mon (yesterday) | Tue (today) | Irish Times front page, inside | Irish Independent | Irish Examiner). As it happens, the School of Law, Trinity College Dublin, will tomorrow hold a conference on Children’s Rights and the Constitution.

Update (22 February 2007): My colleague Eoin Carlan has an excellent piece on the Government proposals in yesterday’s Irish Times; and there is coverage by Carl O’Brien of yesterday’s TCD conference in today’s Irish Times.

Update (27 February 2007): Dr Carol Coulter’s report Family Law Matters has now been published on the Courts Service website. It provoked an acerbic attack from the pen of John Waters in yesterday’s Irish Times, which in turn drew a measured response in that paper’s letters column today from Gerry Curran, Media Relations Adviser to the Courts Service. Referring to “the ingenuous media response to Carol Coulter’s first report on the family law system”, Waters argued that the “family law system is incompetent, corrupt and brutal, but it is surely within the capacities of even incompetent, corrupt brutes to raise their game a little” when they were being observed. He concluded:

Had it not been for this column in the past decade, almost nothing of this reality would have been conveyed to readers of The Irish Times. To suggest now that Big Sister has debunked what I and a few others have been pointing out for years is ludicrous and self-serving.

This report serves only to camouflage the true nature of family law. I would describe it and its coverage as a joke were we not dealing with the most serious and systematic abuse of human rights, as well as the most abject failure of journalistic inquiry, on the part of the media in general, in the history of the State.

Of course, it is a classic postmodern move to say that a description serves to obscure rather than to elucidate a contested reality, but I have to say that this is not how I read the report at all. Rather, I saw it as part of the important process of shedding light where there had been obscurity, for good constitutional reasons of ensuring that justice is not only done but also seen to be done. It is part of this process, a pilot, a start, and certainly not yet the end point. We need more work like this, not less.