Earlier this evening, I did an interview on The Last Word with Matt Cooper on Today fm concerning next Thursday’s referendum to amend the Constitution to add a mechanism to allow judges’ salaries to be reduced. The arguments in favour of the principle are very strong: as a matter of fairness and balance, when other public servants are suffering pay reductions, there is no good reason why judges should not do so too. But that is not the only principle at stake here: the independence of the judiciary is an important aspect of the rule of law. Any implementation of the principle of reduction in judicial salaries in line with other public servants ought to be done without doing violence to the principle of the independence of the judiciary. As I said on The Last Word with Matt Cooper this evening, I do not believe that the proposed amendment manages to maintain this balance.

The amendment proposes that “provision may … made by law to make proportionate reductions to the remuneration of judges” in certain circumstances. Leaving aside those circumstances, this simply allows the reduction of judicial salaries to be effected by legislation, which in the ordinary way is proposed by Government. This gives the executive significant power vis-à-vis the judiciary, and represents a significant inroad into the delicate balance of powers between the executive and the legislature on the one hand, and the judiciary on the other. Read the rest of this entry »

Growing up, I loved the comic 2000AD, and one of its leading characters was Judge Dredd (pictured left). We never saw underneath his helmet’s visor because – with his catchphrase “I am the law” (echoed by Lord Thurlow LC in The Madness of King George) – he represents the impartiality and facelessness of justice. This is why more traditional representations of lady justice show her wearing a blindfold – as in the statute overlooking upper castle yard in Dublin Castle: the blindfold represents objectivity and impartiality. Hence, under Article 34.5.1 of the Constitution, judges make a declaration that they will execute their functions “without fear or favour, affection or ill-will towards any man”. This judicial impartiality, abjuring both preference and malice, is the cornerstone of the rule of law – it requires and allows both that questions of legal right and liability to be resolved by application of the law and not by the exercise of discretion, and that the laws of the land should apply equally to all: be you never so high, the law is above you. But, as the text of judicial oath expresses, to be able to decide without favour, judges must be free to decide without fear – that is, without the dread in the title to this post. In particular, they must be free to decide against other arms of government without fear of retaliation.

Executive retaliation can be overt: John Bradshaw presided over the trial of Charles I in 1649; he died in 1659; but Charles II had his body exhumed for posthumous execution in 1661. Less dramatically, but more insidiously, Stuart monarchs frequently sought to dismiss judges who took decisions of which they disapproved. US President Thomas Jefferson, alarmed at the growth of judicial review of executive action, sought to have Justice Samuel Chase removed from the Supreme Court in 1805, but the impeachment failed in the Senate, and the strong US commitment to judicial review and judicial independence were secured. Colombia, Zimbabwe and Pakistan provide more recent instances of intimidation of judges.

Executive retaliation can be far more covert. US President Franklin Delano Roosevelt, alarmed at the striking down of key legislative elements of the New Deal by the Supreme Court, sought to change the way the Court functioned, especially by adding more amenable judges, but the Bill failed in the Senate. More subtly still, a government can seek to control a recalcitrant Court by pulling the purse-strings: earlier this year, the President of the UK Supreme Court complained that existing funding arrangements for the Court do not adequately guarantee its independence.

As a consequence, Article 35.2 of the Constitution provides that “judges shall be independent in the exercise of their judicial functions”. Read the rest of this entry »

According to the Adages of Erasmus, ‘vestes virum facit‘, which is often rendered in English as ‘clothes maketh the man’. Two different stories in today’s Irish Times brought this adage to mind. In the first, a picture tells a thousand words:

The photo is by Gonzalo Fuentes via Reuters and Yahoo. It shows French deputy Nicolas Dupont-Aignan covering his face with a scarf in the colours of the French flag to protest at the denial of speaking time to independent deputies during a debate about Libya at l’Assemblée Nationale in Paris yesterday. It demonstrates that what deputies wear in parliament can be as important as what they say. Sometimes, the sartorial expression is obvious, as where a slogan on a t-shirt makes the point. Sometimes, it’s a little more subtle, but all the more effective, as the photo above of Dupont-Aignan demonstrates. And sometimes, even a deputy’s normal everyday wear makes the point: in Ireland, Mick Wallace TD habitually wears a casual pink shirt. Like some other independent TDs, he dresses casually to make a point against unnecessary conformity and stuffiness; and he dresses in pink as “a challenge to the sad macho element in Irish society”. Read the rest of this entry »

I enjoy political debate; and I particularly enjoy political debates on television between political party leaders. I will therefore be a happy spectator tomorrow night when TV3 host the first such leaders’ debate of the current election campaign. But, as things now stand, Enda Kenny, the leader of Fine Gael, the party which is leading in all of the polls, will not participate. One of the consequences of his refusal to do is that he has made the broadcaster part of the story, and not simply the means by which the political story reaches us, the viewing public. (It’s not the only example of the broadcaster being the story this week: there was a spat between Newstalk and RTÉ; and there were calls for a deputy leaders’ debate and a women’s debate). As a general rule, it’s not a good thing when the broadcaster becomes part of the story; it means something has gone awry with the normal functioning of the political process. When that happens, people often reach for their lawyers. Last week, a leading member of Kenny’s party suggested that having the debate without Kenny (perhaps with an empty chair to symbolize his absence) would breach TV3’s statutory duty of impartiality. I’m surprised I haven’t heard more of this since, but it would not amaze me at all if someone attempts to make this canard fly again over the next few days.

Section 39(1)(b) of the Broadcasting Act, 2009 (also here), requires that broadcasters ensure that their treatment of current affairs “is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of … [their] own views”. Clearly, if TV3 had excluded Kenny from a debate featuring other leaders, they would be in breach of this duty (Wilson v IBA 1979 SLT 279; R v BCC, ex parte Owen [1985] QB 1153; Lynch v BBC [1983] 6 NILB 1; Wilson v IBA (No 2) 1988 SLT 276; R v BBC, ex parte Referendum Party [1997] EMLR 605; SNP v Scottish TV (Court of Session, Outer House; 15 April 1997); Boyle [1986] Public Law 562; Munro (1995) 145 NLJ 518). Indeed, in such hypothetical circumstances, they may well be in breach of constitution (Coughlan v Broadcasting Complaints Commission [1998] IEHC 62 (24 April 1998); aff’d [2000] IESC 44 (26 January 2000); [2000] 3 IR 1 (HC, Carney J; SC); Kelly v Minister for the Environment [2002] IEHC 38 (16 May 2002)). But TV3 have not excluded Kenny; instead, they have invited him to participate, and he has chosen not to. This is simply the latest in a long and ignominious tradition of politicians declining to face (running away from?) uncomfortable questions on inhospitable programmes from disagreeable interrogators. It is plain common sense that a decision of a broadcaster to go ahead with a programme after a politican or representative of a political viewpoint has declined the opportunity to participate should not, for that reason, infringe the duty of fairness and impartiality. Otherwise, that refusal would give the refusenik a veto to stymie the broadcast.

Moreover, those cases demonstrate that compliance with s39 is not a formal or mechanical matter; instead, the broadcaster must take a realistic approach to their attempts to achieve balance. Indeed, even section 39 recognises that formal or mechanical compliance with its terms is often difficult, since it goes on to stipulate that if it is impracticable to comply with the duty of fairness and impartiality in relation to a single broadcast, then “two or more related broadcasts may be considered as a whole”, provided that the broadcasts “are transmitted within a reasonable period of each other”. For example, a series of one-on-one interviews with leading politicians would plainly satisfy these conditions. So, even if there are concerns about Kenny’s absence from the debate on Tuesday night, TV3 could counter that their overall election coverage more than makes up for them.

In short, even if Enda Kenny declines an invitation to participate in a leaders’ debate on TV3, and TV3 nevertheless go ahead with the debate without him (perhaps with an empty chair, or worse), there would be no substance to any objection from Fine Gael that this is in breach of their statutory duties of fairness and impartiality.

During the course of the next month or so, we are going to hear a lot about the duty of broadcasters to be balanced, fair, objective, and impartial, in current affairs matters. In fact, TV3 have twice now sought to determine exactly what that duty means. First, earlier this month, TV3 queried whether this duty requires a moratorium on political coverage the day prior to polling and on election day. Then, last Thursday night, on Tonight with Vincent Browne, Browne suggested that if Fine Gael leader Enda Kenny did not accept TV3’s invitation to participate in an election debate with other party leaders, TV3 would go ahead with the debate with an empty chair where Kenny should have been; and Browne simply rebuffed Fine Gael’s Alan Shatter’s objection that the empty chair would breach TV3’s duty of impartiality. Given how supine Irish broadcasters have been in the past about the scope and limitations of this duty, I’m delighted to see TV3 take such a robust interpretation, and I look forward to further examples during the general election. In the meantime, in this post, I want to look at the fairness issues raised by the moratorium; in a future post I will look at those raised by the empty chair.

The duty of impartiality at issue in these cases flows from section 39(1) of the Broadcasting Act, 2009 (also here), which requires that broadcasters ensure that

(a) all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views,

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of his or her own views, except that should it prove impracticable in relation to a single broadcast to apply this paragraph, two or more related broadcasts may be considered as a whole, if the broadcasts are transmitted within a reasonable period of each other, …

Moreover, section 42(2) of the Act (also here) requires that the BAI prepare a broadcasting code providing

(a) that all news broadcast by a broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views,

(b) that the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the broadcaster’s own views, …

The Broadcasting Authority of Ireland (BAI), reflecting the practice of its predecessor bodies, had taken the view that proper compliance with section 39 requires a moratorium on election coverage by the broadcast media during the final 24 hours before polling commences or while polling is underway, to allow voters a period for reflection in the final stages of an election campaign. Read the rest of this entry »

Last month on this site, I posed the question: why do we need a Censorship of Publications Board? It was a rhetorical question; in my view, we don’t need one at all.

The Censorship of Publications Board was established by section 3 of the Censorship of Publications Act, 1929 (also here), with the power (under section 6 (also here)) to prohibit the sale of any book which

… is indecent or obscene or advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or such procurement …

Its procedures are governed by the Censorship of Publications Regulations, 1980 (SI No 292 of 1980), and the Department of Justice website contains the Register of Prohibited Publications of December 2009 (here: pdf). A piece by John Byrne in today’s Irish Times (with added links) not only reinforces my view that we no longer have need for such paternalism, but also gives grounds for optimism that we will soon no longer be subject to it:

What a shocker: no more books to ban

After 80 years of censorship from a board once internationally notorious for its prurience, the last remaining book to be banned in Ireland on the grounds of obscenity will have its prohibition lifted this year, …

On May 9th, 1930, a year after the passing of the initial Censorship of Publications Act, [Aldous] Huxley’s novel [Point Counter Point, above left] became the Act’s first casualty. Banned on the grounds that it was “indecent and obscene”, it earned the dubious historical honour of being recorded as the first entry in the first volume of the Register of Prohibited Publications. Sixty-eight years and 12,491 prohibitions later, The Base Guide [to London] remains the final entry in the register’s final volume. …

In the 12 years since this last prohibition, the Censorship of Publications Board – at one time internationally notorious for its prurience and moral conservatism – has not banned a single title. … Under the terms of the 1967 Censorship of Publications Act, books deemed “indecent or obscene” have their prohibitions revoked after 12 years. With The Base Guide removed from the banned list along with 14 other titles likewise prohibited in 1998, the board’s long war against indecent and obscene books will, effectively, be over. For the first time since formal censorship began, not a single title banned on these grounds will remain on the register.

… the register will not, come December 31st, be entirely cleared of its backlog of prohibitions. There are, for instance, 279 periodicals still listed … [which will] remain banned until their prohibition is successfully appealed, … As far as books are concerned, eight lonely titles stand exempt from the 12-year amnesty that will shortly release The Base Guide et al. This group … will remain prohibited under current legislation that prohibits publications deemed to “advocate or promote” the procurement of abortion, waiting with faint hope for the unlikely day when a qualified party might launch an appeal on their behalf. …

It is very difficult to find official information online about this censorship regime (apart from short entries on the Department of Justice and Citizens Information websites – there is no official website or independent home for the Board, which now resides c/o the Irish Film Classification Office). Our current censorship regime is hidden in the shadows, and is being allowed to decline in obscurity:

Dust in sunlight and memory in corners
Wait for the wind that chills towards the dead land.

Perhaps this neglect is because it embarrasses our lords and masters. It certainly embarrasses me. But instead of letting it wither quietly into oblivion, we should have the courage publicly to abolish it. The sooner Fine Gael’s Bonfire of the Quangos does away with this monument to our forefathers’ self-consciousness, the better.

Yesterday, as Scrooge announced a take-away budget, Santa produced give-away bank machines. Bank of Ireland experienced “an unforeseen technical issue” with its computers. This meant that some of its customers were able to make ATM withdrawals of amounts greater than their available funds or credit. However, the bank said that all money withdrawn by customers in excess of their balances yesterday will have to be repaid, and that ATMs are working normally now.

The bank’s first port of call to enforce their repayments will be the terms and conditions of the contracts they have with their customers. For example, clause 3.2 and clause 10 of the Terms & Conditions relating to Personal Current Accounts in the Standard Current Account Terms & Conditions (PDF) allow the bank to recover unauthorised overdrafts incurred “without the bank’s prior written agreement”; and clause 2.9 of the Terms and Conditions of Use relating to ATM Cards and Laser Cards in the same Standard Terms and Conditions permits the bank to restore an account to the state it would have been in had “an incorrectly executed transation not taken place”. However, reliance on these terms and conditions may be displaced if the term is unfair having regard to the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995), or if a strict interpretation of the relevant terms excluded their applicability (for example, the argument might run that the terms and conditions apply to the ordinary running of the account and not to these kinds of extraordinary circumstances where the bank simply allowed the transactions to go ahead with the risk that some customers at least would not have the relevant available funds).

Even if the contract doesn’t apply, there may a non-contractual claim to restitution of the over-payments on the grounds that the customers were unjustly enriched. As I have had occasion to remark on this blog, a bank error in your favour is not a gift from God; neither is it a gift from Santa, despite the time of year. The starting point for a restitution claim in these circumstances is that many such payments are mistaken payments (see Nolan v Enniscorthy UDC (1955) 89 ILTR 12; National Bank v O’Connor & Bowmaker (1969) 103 ILTR 73 (Budd J); Barclays Bank v Simms [1980] QB 677 (Goff J); Australia and New Zealand Banking v Westpac Banking (1987-1988) 164 CLR 662, [1988] HCA 17 (21 April 1988); David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353, [1992] HCA 48 (7 October 1992); Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, [1998] UKHL 38 (29 Oct 1998); Dextra Bank & Trust Company Ltd v Bank of Jamaica (Jamaica) [2001] UKPC 50 (26 November 2001); Fielding v Royal Bank of Scotland [2004] EWCA Civ 64 (11 February 2004); Donal Rigney Ltd v Empresa De Construcoes Amandio Carvalho SA [2009] IEHC 572 (27 November 2009); Deutsche Bank Ag v Vik [2010] EWHC 551 (Comm) (19 March 2010)). So, the question is whether the bank is mistaken in making these payments. On the one hand, they knew that the central computer was down, and decided to allow the ATMs to operate in offline mode without reference to the central computer, so how could they be mistaken generally? On the other hand, since they had no way of checking balances in respect of each individual customer, they could argue that they (or at least their ATMs) made mistakes when making the overpayments.

Update: A similar way of putting the same enquiry is to ask whether the bank made mistakes about a state of present fact, or whether they made mispredictions about future events (seethe cases above, especially Kleinwort Benson and Dextra Bank; see also Royal Bank of Ireland v Pentony [1941] IR 523 (SC) and Deutsche Morgan Grenfell v Inland Revenue [2007] 1 AC 558, [2006] UKHL 49 (25 October 2006)). If they made a mistake about the way the computers were operating, then that is mistake about present facts, and gives rise to a cause of action. On the other hand, if they made a misprediction about the way the computers would operate in the future, then that is a misprediction about future events and does not give rise to a cause of action.

Assuming that the bank has causes of action against overpaid customers, the customers might claim that they have defences. First, they could claim that the bank made the payments at all events, accepting the risk that the payments might be mistaken or invalid (see the cases above, especially O’Connor, Simms, David Securities, Kleinwort Benson, and Deutsche Morgan Grenfell). There are fine questions of degree as to the bank’s knowledge and acceptance of the risk they were taking. In principle, however, if they were negligent in creating the circumstances of the overpayments, this negligence does not preclude their reliance on any mistake (see again the above cases; and see also Kelly v Solari (1841) 9 M&W 54, 152 ER 24, [1841] EngR 1087 (18 November 1841) (PDF), Banque Financière de la Cité v Parc (Battersea) Ltd [1999] AC 221, [1998] UKHL 7 (26 February 1998); Derby v Scottish Equitable [2001] EWCA Civ 369 (16 March 2001)) though of course it might found a counter-claim by the customers in the tort of neglience. But any such negligence might be relevant in that it may provide the factual foundation for the finding that they assumed the risk of overpayment.

Some customers might be able to argue that they received the overpayments in good faith, and in reliance on those receipts, expended the money (as well as the above cases, especially Derby, see also Murphy v AG [1982] IR 241 (SC); National Bank of New Zealand v Waitaki International Processing [1999] 2 NZLR 211 (NZ CA)). This will be difficult to sustain for many of the customers who had knowledge of the bank’s computer problems. However, just as there are degrees of knowledge on the part of the bank as to whether they had assumed risk, there are questions of degrees of knowledge on the part of the customers as to their good faith. And there must be some customers who did not know about these issues, and whose withdrawals were indeed in good faith. They might therefore able to rely on this defence of change of position.

All of this means that the route to reclaiming overpayments from customers is not entirely straightforward. In doing so, the bank, briefly Santa, will no doubt be cast as Scrooge.

Update: that last paragraph was quoted in a piece by Paul Cullen in the Irish Times: Bank of Ireland to waive penalty on customers who overdrew ATM accounts

By way of a brief update on my two recent posts about third level policy, a story in yesterday’s papers caught my eye. First, a report in the Irish Times:

Less than 15% in some Dublin areas going to college

Less than 15 per cent of Leaving Cert students in some poorer areas of Dublin are progressing to third level, according to the 2010 Irish Times feeder school list published today. … In stark contrast, most schools in south Dublin have a progression rate of 100 per cent; every one of their students who sat the Leaving Cert this year has progressed to third level.

The new figures come amid renewed controversy about the impact of the abolition of third-level fees in 1995 and as students face increased registration charges in next month’s budget. The list appears to show that “free fees” have have had only a marginal impact in boosting participation levels in poorer areas. …

The Irish Times also publishes a separate list focusing on progression rates to high-points courses, mostly in the university sector. This list is dominated by feepaying schools. …

Unfortunately, I haven’t been able to locate either list on the Irish Times website. The Irish Independent has a similar story:

Parents buying school success, figures reveal

More than 90pc of students who sat the Leaving Cert in fee-paying or grind schools went on to higher education, figures compiled by the Irish Independent reveal. … In total, students who had studied for the Leaving Cert in either fee-paying or grind schools made up one in every eight of those who enrolled in college in September.

By contrast, the average transfer rate for schools in the free education scheme was lower. It varied from below 10pc for schools in disadvantaged areas to an impressive 100pc for some schools, particularly Gaelscoileanna, such as Colaiste Eoin and Colaiste Iosagain in Stillorgan, Co Dublin. …

Dr Selina McCoy from the Economic and Social Research Institute said: “Given the nature of the intake to fee-paying schools, you would expect a large proportion to progress to higher education. … What we really need to focus on in future research is the extent to which schools add value or make a difference in enabling students to successfully compete for higher education entry.”

Again, I haven’t been able to locate if the Irish Independent has made available online the figures that they have compiled in this regard.

These developments come as a survey of education and skills by the Irish Business and Employers Confederation (IBEC) shows that

75% of employers are satisfied with the calibre of graduates from Irish higher education institutions. However, employers also felt graduates fell down on their people skills and their ability to work independently. … The ability to work autonomously, ‘attitudinal’ and ‘people-related’ skills were ranked as the top three gaps in graduates’ competence.

The full survey is available here.