Category: Irish Law

The Defamation Bill and the art of fugue (though not fudge)

| 4 Comments
| Defamation, Defamation Bill 2006, Freedom of Expression, Irish Law, Media and Communications

JS Bach via jsbach.orgYesterday, 21 March, was not only the Vernal or Spring Equinox, but also the anniversary of the birth, in 1685, of JS Bach (pictured left; see jsbach.org | wikipedia | baroquemusic.org) – composer of the Art of Fugue. It was also the day on which – stop press – during yesterday’s resumed Seanad debate (html | pdf to follow | Irish Times report (sub req’d)) on the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) Minister McDowell denied that he is a “fascist”, and insisted that he is “a liberal and a republican politician”! Whatever about the newspaper comments which provoked these declarations, or even some of the language he himself used in reponse to an effete lefty pinko commentariat? (Senator Norris’s summary of the Minister’s various pronouncements), nevertheless, at least on the issue of defamation, Minister McDowell yesterday once again proved himself on the side of the angels, declining many opportunities to fudge important issues of principle in the Bill.

During the debate, the members of the red herring school of debating were out in force again, …

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Article 40.6.1(i) finally gets some teeth!?

| 18 Comments
| Freedom of Expression, Irish Law, Irish Society, Media and Communications

Luminarium, Dublin, 15 Jan 2007Various news services (BreakingNews.ie | Ireland.com | RTÉ) report that Mr Justice de Valera today struck down section 3 of the Vagrancy (Ireland) Act 1847 (as amended by the Public Assistance Act, 1939), much to the chagrin of the perpetually angry JC Skinner. That section made begging in a public place an offence, and de Valera J struck it down as a disproportionate infringement upon the right to freedom of expression in Article 40.6.1(i) of the Constitution and the unenumerated right to communicate located in Article 40.3.1

Perhaps this will be the spur to dust down the Law Reform Commission’s 1985 Report on Vagracy, as part of a thorough-going reform of an area of the law largely untouched since Victorian times? More importantly, as far as I know (and the High Court in The State (Lynch) v Cooney [1992] IR 337 notwithstanding) this is the first time that a section of an Irish Act has been struck down on freedom of expression grounds. If so, that makes today a red letter day in Irish constitutional history: the day upon which Article 40.6.1(i) finally gets some teeth. …

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Consumers’ Days

| 2 Comments
| Contract, Irish Law, Irish Society

National Consumer Agency logo, via the NCA websiteIn the week that the EU Commission adopts a Consumer Policy Strategy for 2007-2013 (largely welcomed (pdf) by the European Consumers’ Organisation (BEUC)), and the Consumer Protection Bill, 2007 (noted here) wends its way through Committee stage in the Dáil (just in time for enactment before the general election, one hopes), it seems that today (15 March 2007 – the Ides of March, methinks) is World Consumer Rights Day (noted here by the NZ Free Speech blog Section 14; for more background see days that matter and also here), and tomorrow (16 March 2007) is the 9th European Consumer Day.

In Ireland, the National Consumer Agency (NCA, which will incorporate the Office of the Director of Consumer Affairs (ODCA) later this year, is the state body established (according to its website) “to be a powerful advocate on behalf of consumers” and it will “also have a leading role in consumer information, research, education and awareness”; whilst the Consumers’ Association of Ireland (CAI) is (according to its website) “an independent, non-profit organisation working on behalf of Irish consumers”. …

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Trócaire revise ads in face of BCI ban

| 17 Comments
| advertising, Freedom of Expression, Irish Law, Irish Society, Media and Communications, Politics

BCI logoTrócaire have just posted a statement on their website, under the headline “BCI upholds its decision on Trócaire advert”, in which they say that they have agreed to revise their controversial radio and television advertisments:

Trócaire has been informed today by the BCI that it is confirming it’s initial decision in relation to Trócaire’s Lenten advertisement on gender equality, deeming that the campaign is toward a political end.

The BCI has proposed an amendment to the script of the broadcast as follows:
“Support Trócaire to help end gender inequality.”

The original script stated:
“Support Trócaire’s Lenten Campaign to help end gender inequality.”

Despite this change Trócaire is satisfied that the three elements of our Lenten campaign namely, fundraising, awareness raising and campaigning on UN Resolution 1325 [link] (including the online petition [link]) are still fully intact. All these activities continue as before.

…

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Plans for an Irish Court of Appeal?

| 7 Comments
| Irish Court of Appeal, Irish Court of Appeal, Irish Law, Irish Society, judges, Politics

According to an article by Paul Cullen on the front page of today’s Irish Times, there are moves under way to create a new Court of Appeal for Ireland. This can only be welcome news, both for litigants and for judges.

Even though the nine judges of the Supreme Court can sit now in divisions of three, it can still take up to two years or more for an appeal to be heard; and a Court of Appeal that relieved that backlog of cases and allowed litigants’ appeals to be heard and decided more quickly would undoubtedly be good news for litigants. Moreover, too many cases come to the Court to allow it to do its work as a Supreme Court: at present, it hears more than 300 cases a year, compared with no more than 100 in the US Supreme Court, the Supreme Court of Canada, the High Court of Australia, and the House of Lords (which, in its judicial capacity, is the UK’s highest court). In those jurisdictions, there is an automatic right to appeal to Court of Appeal level from cases at High Court level, so litigants always get the option of an appeal; but there is an appeal from Court of Appeal level to the court of final appeal only in cases where that latter court is persuaded that there are special or exceptional reasons for the appeal to be heard.…

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Advance Directives, Living Wills – Update

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| Irish Law, Mental Capacity

webcoverad.jpgThe 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.…

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Advance Directives, Living Wills

| 2 Comments
| Irish Law, Mental Capacity

ICB banner imageAccording 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.…

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