An article in today’s Daily Telegraph raises important issues relating to the retention of the DNA of innocent persons by the police in both the UK and Ireland. It also raises profound questions as to the effect of decisions of the European Court of Human Rights in domestic law.
According to the Telegraph:
The [UK's] Coalition Government has pledged to dramatically reduce the time period that police can retain samples of people who were not charged or convicted of offences. It follows a ruling by the European Court of Human Rights in 2008 that a blanket policy of retaining such profiles indefinitely was illegal.
However, no new laws have yet been introduced and the Supreme Court will today hear a test case that such samples should be deleted now. If the country’s top court agrees it could result in police forces having to remove the samples immediately regardless of when new legislation is introduced.
The rather arcane principles of academic tenure and academic freedom, which have long featured on this blog, have recently moved close to the centre of industrial relations debate and political discussion. The National Strategy for Higher Education in Ireland (the Hunt Report) and the Public Service Agreement 2010-2014 (the Croke Park Agreement) seem to imperil both concepts. The current conception of academic tenure is threatened by proposals to make significant changes to academic employment conditions, and the current conception of academic freedom is undermined by recommendations that fundamental academic choices should be determined not by academics or institutions but at national level. It is unsurprising, therefore, thatarecentmeetingofIrishacademics protested against the implementation of the Croke Park agreement in third-level institutions, and called for the defence of tenureand academic freedom.
Some colleges and universities have been strong in their defence of these concepts. For example, I have already discussed the provisions of Trinity’s 2010 Statutes protecting tenure and academic freedom. Moreover, the Trinity’s Council and Board have recently approved a detailed and progressive Policy on Academic Freedom. I have also discussed similar statutory provisions in other Irish universities. To that, I can now add the provisions of NUI Maynooth’s statutes relating to tenure. Read the rest of this entry »
Restitution Rollout: Restatement (Third) of Restitution and Unjust Enrichment
on February 25, 2011 in Lexington, Virginia.
The American Law Institute (ALI), the leading legal-reform organization in the United States, restates basic legal subjects to inform the legal profession what “the law” is in a particular subject. In 2010, the ALI approved the Restatement (Third) Restitution and Unjust Enrichment (2011), the subject of theRestitution Rollout.
Restatement (Third) of Restitution and Unjust Enrichment replaces the original Restatement of Restitution, promulgated in 1936. Restatement Third restores the full title, Restitution and Unjust Enrichment, that appeared on the Tentative Drafts of the original Restatement but was dropped when the official text was published, thus emphasizing that the subject matter encompasses the independent body of law of unjust enrichment, and not simply the remedy of restitution.
At the conference, ALI Reporter Andrew Kull and ALI Director Lance Liebman will introduce the Restatement Third of Restitution. They will be joined by leading Restitution and Contracts scholars including Joe Perillo, Lionel Smith, Emily Sherwin, John McCamus, Peter Linzer, and Caprice Roberts, among others. Read the rest of this entry »
“Even the judges know who Naomi Campbell is”. At least Baroness Hale of Richmond does, since this is how she began her speech in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004), in which she was a member of the majority which held that aspects of the Mirror’s coverage of Naomi Campbell’s fight against narcotics addiction – in particular, the publication of photographs which did not advance the public interest in the story – infringed her privacy. Today, in MGN v UK39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights (ECHR) held that this holding did not infringe Article 10 of the European Convention on Human Rights. Campbell was awarded £3,500 for that invasion of privacy. For the appeal to the House of Lords, she had retained solicitors and counsel pursuant to a conditional fee agreement (”CFA”) which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. For the appeal to the House of Lords, legal fees were £288,468; and the success fees were £279,981.35; so the total fees were £594,470. Adding in the fees at first instance and before the Court of Appeal, Campbell’s costs amounted to a total of £1,086,295.47. In Campbell v MGN[2005] UKHL 61 (20 October 2005), the House of Lords approved an award of costs to her in this amount. In today’sjudgment, (which I have noted here), the ECHR held that addition of the success fee infringed Article 10. As the Guardian’s headline put it: the European court deals [a] blow to no win, no fee deals in Naomi Campbell case.
the very word connotes safety, security, and a sense that you have made it in academia. But is the system really all it is cracked up to be, or is it lumbering into the world of 21st century academia like a dinosaur that hasn’t heard it is supposed to be extinct?
In earlier posts on this blog, I have looked at various issues relating to the variouslegalprotections of academic freedom and at the concomitant concept of academic tenure as a matter of principle. In today’s post, I want to look at it as a matter of law.
The starting point is the Universities Act, 1997. Section 25(6) (also here) of the Act provides (with added emphasis):
A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions, which procedures or conditions may provide for the delegation of powers relating to suspension or dismissal to the chief officer and shall provide for the tenure of officers.
The Statutes of a university constitute its basic law, and section 3 of the 1997 Act (also here) provides that “officer[s]” include “permanent, full-time member[s] of the academic staff of the university”. Hence, section 25(6) effectively requires that each university’s statutes must only specify disciplinary procedures leading to the suspension or dismissal for their employees, but must also provide for tenure of full-time members of academic staff. This rider to section 25(6) is very important. Dismissal procedures be set out in universities’ fundamental constitutional documents, and where such procedures affect full-time members of the academic staff, they must specifically provide for tenure. This is a strong legislative commitment to the principle of academic tenure. As with the Act’s comcomitant protection of academic freedom, there are very few similar general legislative provisions elsewhere. In this respect at least, Irish legislation is particularly progressive, and – as Prof Jim McKernan, formerly of UCD and UL, and now of the College of Education in East Carolina University, has recently argued on Ninth Level Ireland – these freedoms must be jealously guarded and zealously protected:
Academic freedom is the right of the faculty member to select one’s materials, methods, pedagogy and points of view in teaching one’s discipline. … Academic freedom is an absolute necessity for a democratic society. … Faculty need to be free of the constraints of censorship and interference in the conduct of their duties by the institution or other agents and agencies in the community.
… Faculty members, after a probationary period have a property right to their position and cannot be removed barring ‘just cause’. Tenure does not guarantee a post for life. When I was first appointed at UCD in 1981 there was one condition in my contract letter for removal-being guilty of ‘gross moral turpitude’. Irish academics had real tenure in those days. I do not know if new conditions for removal of tenured faculty have been introduced. … Tenure really means that one ‘owns their position’ and the right to return to that position year after year after the probationary period. … Tenure secures a working community of scholars based on accepted academic values and aims, and it guarantees that a person cannot be dismissed from that community without due process and without consideration based on well established objective academic criteria. As it turns out, the truth is not always popular, especially within circles of power and wealth. Remove the system of tenure and we shall witness a ‘Flight of the Dons’. …
The answer to Jim’s question in bold about the current state of tenure in Irish universities is in three parts. Read the rest of this entry »
Drumbeats for privacy protection in the face of press intrusion are most often raised by politicians and celebrities. The Economist recently reported that the age at which celebrities become famous is dropping, at the expense of ultimately shorter spells in the limelight. Just Jack’s astringent Starz in the Eyes (above) reflects on the often immense price of fleeting fame: one reason certainly is a hungry media pandering to the public’s interest in celebrities and their lifestyles. For example, much of the coverage of the aftermath of the death of Irish tv and radio personality Gerry Ryan concentrated on his drug taking during his career and in the lead-up to his sudden and untimely death.
Referring to this in a wide-ranging interview featured on the cover of the current issue of Hot Press magazine (cover, right), rugby star Brian O’Driscollsaid:
I thought some of the coverage relating to his death was absolutely disgusting … I don’t feel as if the toxicology report should be made public knowledge. But that’s tabloid sensationalism for you.
He accepted that he and his wife, actress and writer Amy Huberman, are a celebrity couple with little control over what people say about them, and whilst he finds much of the attention “flattering”, he said that “maintaining a private life is very difficult” in the face of media persistence.
It would not surprise me if O’Driscoll’s is not the only call for privacy legislation in the wake of Ryan’s death, much as, this time last year, politicians sought to use TV3’s revalations of Brian Lenihan’s illness as a reason to suggest privacy legislation – notwithstanding the Broadcasting Authority of Ireland rejected (pdf) a number of complaints about TV3’s coverage. The loudest calls for privacy legislation came from the Seanad (an institution whose days may very well be numbered):
Senator Rónán Mullen: here: … [I] raise the media treatment of the Minister for Finance over the Christmas period. I ask the Leader for a debate at the earliest opportunity on the media and how they operate. I am not talking about a session in which everybody comes in and vents their own personal spleen, vendettas or gripes against journalism. There is already too much of politicians giving out about the media. We do not need a culture in which people constantly give out about the media. We need a culture in which people hold the media to account. We will do so by identifying that the libel laws alone are not sufficient to protect people, whether in private life or in public life from the depredations of the media. We need a more thorough analysis of how the media operate. While we need to consider that under the heading of privacy, we also need to consider issues like taste and decency, and fairness and balance. We can all outline occasions and instances where the media have been unfair. However, we live at a time when all institutions are coming under scrutiny and there is very little support for self-regulation. While I commend the work being done by the press council, that does not cover broadcast matters. There is no sense that the broadcasting regulatory authorities have any teeth at all. We clearly need to reconsider how we can hold the media to account in a way that does not impact unnecessarily or inappropriately on media freedom.
I say this with great sympathy to individual journalists who are caught up in a web of bad practice because of the pressure they face from their editors and media bosses. This is not targeted against any individual journalist or media practitioner. However, we definitely need a debate on how we can get the media to observe better standards. It was simply not acceptable to hear a series of journalists in recent weeks defend, as they had to do, bad practice. The most that some would say was that they would not have done it that way themselves, as if there were no objective standards which all should uphold. Clearly the timing of telling that story was a matter that should have been negotiated with the Minister’s family. The idea that anybody was done a favour by being given merely two days over Christmas is an insult to our intelligence.
Senators: Hear, hear.
Senator Rónán Mullen: I am asking seriously for a debate on the media in which we will not be hearing just rants about the media, but also constructive thoughts about how we can get the right balance between media freedom on the one hand and the right of all members of the public, including people in public life, to good standards on the other.
Senator Niall Ó Brolcháin: here: I also support the call for a debate on media very strongly, given the way things are going in this country in relation to politics, since I believe the media are unhelpful at the moment in that regard. It would be quite something to have a live debate on RTE television and radio from the Seanad, so that we might get our points across unedited. Quite often, the difficulty with media is that we are talking about spin and the segmenting of the things we actually say. It would be important to get matters before the public, live and directly, rather than having debates edited all the time.
These calls died out last year, and politicians now have other things on their plates at the moment, but the next government might be tempted to unpack the deeply flawedPrivacy Bill, 2006. It is a temptation they must resist.
Mark your diaries. The Annual Conference and AGM of the Irish Society of Comparative Law (ISCL: blog | website) will take place in University College Dublin
from Friday 29 April to Saturday 30 April 2011.
Call for Papers
The Society is seeking especially proposals which place Irish law (in either part of Ireland) in a comparative dimension but is also open to comparative analyses from other legal systems. Any topic in comparative law or legal systems may be proposed: private or public law, criminal law and criminal justice, legal education, legal history, etc. Papers on European or international law will also be considered. Proposals should be short (250 words) and emailed to Marie-Luce Paris, School of Law, University College Dublin. The deadline for receipt of proposals is 21 February 2011. You do not have to be a member of the ISCL to propose a paper.
Conference
The Annual General Meeting and first plenary address by Dr Eric Descheemaeker, University of Bristol, will take place on Friday 30 April. Conference sessions, the second plenary address by Professor Patrick Glenn, McGill University, and conference dinner will take place on Saturday 30 April. Further information will be available shortly via the ISCL’s blog.
The Irish Society of Comparative Law
The ISCL was established in June 2008 and is recognized by The International Academy of Comparative Law. The ISCL is open to those interested in Irish and comparative law. Its purpose is to encourage the comparative study of law and legal systems and to seek affiliation with individuals and organizations with complimentary aims. Queries should be emailed to the Secretary of the Society, Dr Bénédicte Sage-Fuller, Faculty of Law, University College Cork.
Future events
The next annual conference will be held in University College Cork on 2-3 March 2012.
Posted elsewhere (some of my recent posterous posts)
My posterous site is a companion to this blog: anything that catches my eye on the wild wild web that's too long for twitter but too short for a normal post here will (probably - eventually) end up over there.
An article in today’s Daily Telegraph raises important issues relating to the retention of the DNA of innocent persons by the police in both the UK and Ireland. It also raises profound questions as to the effect of decisions of the European Court of Human Rights in domestic law. 
Referring to this in a wide-ranging 
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