The principle of proportionality is one of the most important, and most mercurial, concepts in the case-law of the European Court of Human Rights. Antoine Buyse on ECHR blog brings news of an important new book on the topic:

New Book on Fair Balance

Jonas Christoffersen, director of the Danish Institute of Human Rights, has just published a reworked version of his Ph.D. thesis as a book: Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights with Martinus Nijhoff Publishers. An important addition to the field of ECHR studies and a very extensive analytical work (670 pages) on a legally complicated principle. This is the abstract:

In one of the most important publications on the European Convention and Court of Human Rights in recent years, a wide range of fundamental practical and theoretical problems of crucial importance are addressed in an original and critical way bringing a fresh, coherent and innovative order into well-known battle zones.

The analysis revolves around the Court’s fair balance-test and comprises in-depth analyses of e.g. methods of interpretation, proportionality, the least onerous means-test, the notion of absolute rights, subsidiarity, formal and substantive principles, evidentiary standards, proceduralisation of substantive rights etc. The author coins the term of “primarity” in order to clarify the obligation of the Contracting Parties to implement the Convention in domestic law.

Compare and contrast Stavros Tsakyrakis “Proportionality: An assault on human rights?” (2009) 7(3) Icon 468-493; the abstract:

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against conflicting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes.

Free Education for Everyone (FEE) is a grassroots group of students and staff in various third level instititutions which has been set up to fight the re-introduction of fees while campaigning for genuinely free education for all. According to their About Us page:

FEE activists have organised protests, occupations and blockades across the country over the past number of months.

For example, in February of this year, their protests against former Taoiseach (Prime Minister) Bertie Ahern’s arrival at NUI Galway led to the cancellation of a public interview with him – and I thoroughly disapproved of this at the time. Protestors must be allowed to make their point, but, by the same toke, they must not have a veto on the speech of others. Now, it seems that FEE have Bertie in their sights again, according to a press release published this afternoon:

Press Release: UCD students plan Bertie Blockade

Student campaign group, Free Education for Everyone (FEE) is planning to planning to stage a blockade of Bertie Ahern’s appearance at a debate on the Lisbon Treaty, tonight at 7pm in UCD’s O’Reilly Hall. Following a blockade of Brian Lenihan by the group last September, Martin Mansergh, Mary Hannafin and Conor Lenihan were forced to pull out of other scheduled appearances at the college. …

FEE have more information about tonight’s protest and their earlier actions on their website. I deplore the fact that their protests have meant not only that Ahern could not speak in Galway, but that Brian Lenihan, Martin Mansergh, Mary Hannafin and Conor Lenihan could not speak in UCD. There is, to say the least, an irony in preventing debate in a university. The best answer to speech is more speech – discussion might not change the other person’s mind but it can influence the neutral or undecided observer in a way that shrillness never could. As a consequence, whilst I am sympathetic to FEE’s objectives and agree with their views about Ahern, I cannot condone their methods. FEE must be allowed to make their point; but, by the same token, they must not be allowed to prevent Ahern from making his. They should certainly make their protest, but they must not censor someone espousing an opposing view. More than that, I hope that those organising tonight’s debate on the Lisbon Treaty in UCD will be active in the defence and support of freedom of expression, and take all necessary steps to ensure that Ahern will not have to pull out.

As another Senior Freshman Law of Contract course gets underway, what do students really think of the Law of Contract? Jeremy Telman on ContractsProf Blog:

Contracts Law & Injustice

This year, more than any other year, my students are telling me that they … they find it frustrating because contracts law seems to be set up to protect the well-resourced and the knowledgeable. Sure, they may be able to advise their clients on how to protect their legal interests, but only by adopting strategies designed to exploit the credulity, timidity and distraction of the weak. …

Oh dear.

The Broadcasting Act, 2009 (pdf) sets the regulatory framework for broadcasting services in Ireland. It consolidates all Irish broadcasting legislation into a single Act, and establishes a new Broadcasting Authority of Ireland (BAI, incorporating the functions of the current Broadcasting Commission and RTÉ Authority). According to Paul Cullen in today’s Irish Times, the BAI is to be established this week:

A new authority with powers to regulate all broadcasting, both commercial and RTÉ, is due to come into existence this week.

The Broadcasting Authority of Ireland (BAI) is expected to begin operations next Tuesday once the Cabinet approves five nominations to its board by Minister for Communications Eamon Ryan. The remaining four board members will be appointed by the Government on the nomination of the Joint Oireachtas Committee on Communications.

A little while ago, the Sunday Business Post reported that the Committee has decided to advertise those posts, so that it will be some time before they are appointed and that the Board will be only partially in place this week. Whether fully or partially established, there will be much for it to. For example, Cullen reports that

… One of the first tasks of the new authority will be to draw up new rules governing the advertising of junk foods on television, something which is specifically provided for in the new legislation. A new code to govern religious advertising is also in planning. …

Inevitably, however, not all of its proposed work has met with approval. For example, writing in yesterday’s Sunday Independent, Colum Kenny also noted that the BAI is expected to be established this week, but raises some alarm bells:

Offence clause may chill broadcasters

Curb on offensive material is only one of the tricky issues facing new watchdog, says Colum Kenny

THE new Broadcasting Authority of Ireland (BAI) has powers to fine broadcasters that “cause offence”. … The Broadcasting Act 2009 has introduced a duty on broadcasters to ensure that “anything which may reasonably be regarded as causing harm or offence” is not broadcast. …

The Department of Communications said last week that the new provision simply replaces former requirements relating to “taste and decency” and is in line with international practice. … Causing offence can be a constitutional right. It is also a good thing if it shakes people out of complacency about institutional hypocrisy or challenges personal misbehaviour. … Just how the BAI will interpret its duty to stop all broadcasters from causing harm or offence will emerge when complaints are made to it or to its new Broadcasting Compliance Committee. The existing BCI has been slow to intervene in the provision of content, allowing considerable freedom to broadcasters to do as they wish. …

Section 39(1) of the Act provides in part (with emphasis added):

Every broadcaster shall ensure that—
…
(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster, and
(e) in programmes broadcast by the broadcaster, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon.

Like Colum, I am also uncomfortable with elements that provision, but a similar offence clause in the UK survived challenge in R v BBC ex parte Pro Life Alliance [2004] 1 AC 185, [2003] UKHL 23 (10 April 2003), and I doubt that an Irish court would come to a different conclusion.

May you live in interesting times.

This is – apocryphally – an ancient Chinese curse. Whatever its provenance, the times are certainly interesting for those who seek restitution of taxes invalidly paid contrary to EU law. In Test Claimants in the FII Group Litigation v HM Revenue & Customs [2008] EWHC 2893 (Ch) (27 November 2008) Henderson J dealt with a series of issues arising in such claims, and in Test Claimants in the VIC Group Litigation; FJ Chalke Ltd & Anor v Revenue & Customs [2009] EWHC 952 (Ch) (08 May 2009) he held that EU law required compound interest to be paid on such claims. This is in contrast to the position at national law, where the courts have held that similar claims to restitution of overpaid taxes (such as was pleaded in the more recent Bloomsbury International Ltd v Sea Fish Industry Authority [2009] EWHC 1721 (QB) (24 July 2009)) only attract simple interest (see my piece “Interesting Times. Overpaid Taxes, Restitution and Compound Interest” (2005) 27 DULJ (ns) 343-363). After Chalke, the Times reported that this could pave the pay for claims amounting to more than £1 billion, and in my previous post I noted that the Financial Times later reported that the Revenue had put aside five times this amount to deal with these and similar claims.

Now comes the bizarre news that the UK’s new Upper Tribunal for tax matters has held where VAT was paid in accordance with domestic law provisions later found to be incompatible with EU law, the Revenue must refund the tax with simple interest only. In Wilkins v The Revenue Commissioners [2009] UKUT 175 (TCC) (pdf), the Tribunal held that ss 78 and 85A of the Value Added Tax Act 1994 (also here) and other provisions to which they refer, which allow for interest on such claims, on their natural construction provided only for simple interest. According to the Times, the consequence will be that affected taxpayers will only receive simple interest from the Revenue and will have to bring a further claim in the High Court for that to be topped up to compound rates. It is an interesting development, but it almost certain to be appealed, though whether the appeal will be successful may very well depend on the outcome of the appeal in the FII litigation, which is due to open next week in the Court of Appeal. In the meantime, judgment is awaited in Ireland in the case brought by GE Capital Woodchester against the Revenue claiming it has overpaid some €19 million due to the State’s alleged failure properly to implement an EU directive related to the VAT treatment of hire purchase transactions.

From the New Yorker Cartoon Bank:

Image: Man in plush law office talking to woman attorney.
Caption: You seem to know something about law. I like that in an attorney.

Further to my three posts on the Statute Law Revision Act, 2007 (also here), I note that the second stage of the sibling Statute Law Revision Bill, 2009 was taken in the Dáil on Thursday. Friday’s Irish Times had a suitably colourful take on it: Bill to repeal statute laws dating back to Henry VIII.

In this process of tidying up the statute book, Ireland has been followed first by Westminster and then by Holyrood. In fact, it is a very important piece of legislation which will tidy up a statute book which still has more than 10,000 old Acts (3,182 pre-1751 Private Acts and 7,543 pre-1851 Local and Personal Acts) of which only 138 contain provisions of ongoing relevance. Apart from these 138 Acts specifically listed in Schedule 1 of the Bill, section 2 proposes the repeal of the other spent or obsolete Acts (1,351 are specifically listed in Schedule 2; the others will be implicitly repealed by their not being saved and referred to in Schedule 1 to the Bill). As Brian Hunt of Dublin solicitors firm Mason Hayes & Curran pointed out at an earlier stage in the process, this is difficult, technical, toilsome work with few visible results; but it is entirely necessary; and I’m delighted to see that it is progressing so effectively.

One of the Acts to be repealed is an Act of 1714 (1 Geo. 1 St. 2) c. 38P which is described in the Schedule as “Enabling the Prince of Wales to qualify himself in Great Britain for the legal enjoyment of the office of Chancellor of the University of Dublin” (an important, if now largely ceremonial, office currently held by Dr Mary Robinson). In 1716, George Augustus, Prince of Wales, took up the office, which he held until his coronation as King George II in 1727, before in turn passing it to his son, Frederick Louis, Prince of Wales, in 1728. I suspect that enabling them to qualify themselves in Great Britain for the legal enjoyment of the office simply means that they could remain in London and did not have to be in Dublin to exercise the functions of the office. And I further suspect that this was important so that the office would not be occupied by the crown’s political opponents or enemies.

A little while ago I blogged about the potential challenge which online education can pose for the traditional model of the university, comparing and contrasting the positions of newspapers and universities as they face online challenges. Now I see that Grant McCracken is also musing that what’s happening to journalism may some day happen to higher education (disintermediating higher education) – the Washington Post also notes that online classes are just cheaper to produce – but then McCracken points out that whilst there may be a move towards self-instruction, the key difference between newspapers and universities is accreditation:

We will continue to need a university, or someone, to certify students have completed their degree requirements, and perhaps how they did. Then the question becomes:

what’s the best way to do accreditation?

The English universities are a useful indicator. Traditionally, they forgave the separation [of] knowledge acquisition from examination. The universities allowed the student an extraordinary latitude. If a student could pass her exams, it didn’t matter if she had spent all her time in the college bar. She was good to go.

We could use a model of this kind. We would leave it to students to prepare their own programs of education, to gather on line with whomever they found interesting and useful. … Students in self instruction will have to decide whether they are ready to sit their exams. They will visit the accreditation website occasionally and examine the oral exams and written ones. They ask themselves, “Could I handle questions of that order?” And if they think they can, they book an appointment, pay their fee, and wait for the examiners to swing back through town. …

For a glimpse of a future that is rapidly become present, have a look at the Online Degrees Hub. For a major Irish player in this market, have a look at Hibernia College.