cearta.ie – Page 24 – the Irish for rights

I have an OpEd in today’s Irish Times about the decision just before Christmas of the Supreme Court in Collins v Minister for Finance [2016] IESC 73 (16 December 2016). In holding against the challenge by Joan Collins TD to the constitutionality of the 2008 legislation under which the Minister for Finance issued more than €30 billion worth of promissory notes to the Irish Bank Resolution Corporation and the Educational Business Society (EBS), the Supreme Court provided the Government with what was, no doubt, a very welcome Christmas present.

In the OpEd, I make two points about the decision. First, the Court described the separate roles of the Government and the Oireachtas relating to approving the expenditure of public finances as locks, and held that, if the Oireachtas cannot or will not turn its key in its lock, the government cannot ignore or avoid the Oireachtas, or seek to pick the latter’s lock. Second, on the facts, the Court held that the Government, in enacting and implementing the Credit Institutions (Financial Support) Act 2008 (also here), did not pick any lock on public expenditure for which the Oireachtas had the key. However, this emphasis on the Oireachtas’s lock has the capacity to constrain Government in the future, and the Christmas present in the Collins judgment would not then be quite so welcome to Government after all.…

There’s no guarantee Ireland’s new Brexit case will get the referral it wants

11 December, 20162 January, 2017

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| ECJ, Irish cases

It’s not everyday that the prospect of an action in the Irish High Court makes worldwide headlines. But a case about the mechanism by which a member state can depart from the European Union is doing just that.

The background lies in last June’s referendum in the United Kingdom, in which the majority voted leave the EU. As a matter of European law, the departure process is provided in Article 50 of the Treaty on European Union. The UK Prime Minister, Theresa May, has stated repeatedly that she wants to begin this process before the end of March next year, and the House of Commons on Wednesday voted to approve this timetable.

The Article 50 process is a recent enough creation. It was inserted into the Treaty by the Treaty of Lisbon in 2007, and it came into force in 2009. It provides that a departing state must notify the European Council of its intention to leave; and it gives the EU and the departing state two years to negotiate the departure arrangements. But the departure of a state from the EU hasn’t happened before; so we are in uncharted waters, both politically and legally; and ambiguities in the text of Article 50 don’t help.…

The Judicial Appointments Commission Bill: guiding principles and the eligibility of academics

6 December, 20162 January, 2017

| 1 Comment

| Irish Law, Judicial Appointments

The Tánaiste and Minister for Justice has today published the Scheme of Judicial Appointments Commission Bill 2016 (press release | Scheme (pdf)) to deliver on the commitments in the Programme for a Partnership Government to reform the system for judicial appointments. The Scheme provides for a new Commission for Judicial Appointments, including a lay chair and a lay majority. The lay members of the Commission will be selected by the Public Appointments Service, which will also select the Chairperson. The Commission will make recommendations to the Government for appointment to judicial office, and a sub-committee of the Commission will prepare codes of practice dealing with selection processes.

This is a thoroughly welcome development, which I will analyse in detail on this blog at a later date. For now, in this post, I want to focus on two innovations, relating to guiding principles to apply in the judicial selection process, and to the eligibility of academics. …

Article 50 in the Irish High Court: cometh the hour, cometh the case?

29 November, 20163 January, 2017

| 3 Comments

| ECJ, Irish cases

It is a rare provision of a Treaty, or a constitution, or an Act, that achieves fame or notoriety simply by means of its number. The First Amendment is so famous the world over that we do not need to be told that it is a clause in the Bill of Rights to the US Constitution. Section 31 was once just as notorious in Ireland. Rapidly joining this pantheon is Article 50. It is an Article of the Treaty on European Union, inserted by the Treaty of Lisbon, to provide a mechanism by which a Member State may withdraw from the EU. It has been plucked from the obscurity of an EU Treaty and thrust into the glare of worldwide headlines by the UK referendum on 23 June 2016 in which the majority of participants voted to leave the EU.

The interpretation of Article 50 has provoked much political and legal discussion, but little consensus. Indeed, I have commented twice on this blog (here and here) on the question whether a notice served by the UK under that Article may be suspended or withdrawn. Only the Court of Justice of the European Union (CJEU) can answer that question authoritatively.…

The Origins of Genocide and Crimes Against Humanity

24 November, 201624 November, 2016

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| Conferences, Lectures, Papers and Workshops

There will be a public lecture by Professor Philippe Sands QC on

East West Street: A Personal Take on the Origins of Genocide & Crimes against Humanity

on Wednesday, 30 November 2016, at 7:30pm, in the Edmund Burke Lecture Theatre, Room 1008 Arts Building (map here), Trinity College, Dublin. All are welcome to attend.

Professor Philippe Sands QC is Professor of Law and Director of the Centre on International Courts and Tribunals at University College London, and a practising barrister at Matrix Chambers, London, specialising in international law.

His book East West Street: On the Origins of Genocide and Crimes against Humanity (Weidenfeld & Nicolson, 2016 | Amazon) won the 2016 Baillie Gifford Prize for non-fiction. Robert Gerwath, reviewing it in the Irish Times, said that it was “a rare book” that “adds genuinely new insights into the war or its legacies”, and “succeeds in bringing the subject to life even for those not primarily interested in the evolution of legal concepts”. Sands has been involved in a number of high profile law cases and has published extensively. He contributes frequently to The Guardian, Financial Times, London Review of Books and Vanity Fair.…

Copyright reform and digital deposit

18 November, 201630 April, 2020

| 5 Comments

| Copyright, Digital deposit

I noted yesterday that publication of the Copyright and Related Rights (Miscellaneous Provisions) Bill 2016 has come a few steps closer. From the perspective of education, the Bill will implement the Marrakesh Treaty to facilitate access to published works for persons who are print disabled, facilitate distance learning and access to education over the internet, extend copyright exceptions to promote non-commercial research, and affirm that libraries, archives and educational institutions may make copies of works in theirs collection for preservation and exhibition purposes. The Bill will also extend “the existing copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis”. Other countries (such as the UK and most other EU countries, Australia, Canada and New Zealand) have extended legal copyright deposit to digital and online publications, but no-one is systematically capturing Ireland’s .ie web domain, and it is on that issue that I want to focus in this post.

The first question is: what is legal copyright deposit? It is the ubiquitous statutory obligation (in Ireland, pursuant to section 198 of the Copyright and Related Rights Act, 2000 (also here) on publishers and distributors to deposit at least one copy of every print publication, free of charge, in designated (pdf) legal copyright deposit libraries.…

Publication of the copyright reform Bill comes a few steps closer

17 November, 2016

| 1 Comment

| Copyright

In August, the Minister for Jobs, Enterprise and Innovation announced that the Government had approved the drafting of a Copyright and Related Rights (Miscellaneous Provisions) Bill 2016. No timetable was provided at that stage. Nor was one provided in the Government’s Autumn Legislative Programme which was published in September. That Programme simply said that the Bill had been referred to the Joint Committee on Jobs, Enterprise and Innovation, but the Bill was not listed for pre-legislative scrutiny by the Committee. Now comes news that, following a briefing by officials of the Department of Jobs, Enterprise and Innovation, the Committee decided that it would not undertake pre-legislative scrutiny of the Copyright Bill (see the Committee’s Work Programme (pdf) s3(c), p5; h/t @johnjcarroll). Whilst it is a pity that the Committee will not afford a first opportunity to point out some concerns with the Minister’s current approach, this does have the advantage of bringing the publication of the Bill itself a few steps closer. Perhaps it might not be too much to hope that copyright reform in Ireland might get a Christmas present this year?…

Amending competition and copyright law to enable open access to universities’ research

11 November, 201617 November, 2016

| 2 Comments

| Copyright, Universities

1. Introduction
John Naughton began a classic column, on the world of university research being held to ransom by academic publishers charging exorbitant prices for subscriptions, by quoting Sir Patrick Cullen’s observation in George Bernard Shaw’s play The Doctor’s Dilemma that “All professions are conspiracies against the laity”. Then he continued:

To update the observation for a contemporary audience, simply replace the term “professions” with “publishers of academic journals” and you’ve got it in one. For, without the knowledge of the general public, a racket of monumental proportions has been milking the taxpayer for decades.

Most rackets can be prevented by good legal regulation. And a Bill that has just been given a very high chance of enactment demonstrates how that regulation might work. In this post, I want to explain the racket and the Bill, and then show how the legislative strategy in the Bill might provide a regulatory solution to the racket.

2. The Racket
Naughton explains the racket this way:

If you’re a researcher in any academic discipline, your reputation and career prospects are largely determined by your publications in journals of mind-bending specialisation … Everything that appears in such journals is peer-reviewed – that is to say, vetted by at least two experts in the field.

…