Reform of the law of defamation – damages
The Tánaiste and Minister for Justice and Equality is conducting a review of the operation of the Defamation Act 2009 (also here). No doubt the focus of media submissions will be the level of damages, and exhibit A in those submissions will unquestionably be the decision of the Supreme Court in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). A report published today by the International Press Institute provides an excellent statement of the argument. In this post, I want to summarize and respond to some of the issues in the Report, and make three practical suggestions for reform of the law of defamation relating to damages.
Government may find Collins judgment an unwelcome Christmas present
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
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.
It is not clear, for example, what form the notice to the European Council must take. Neither is it clear whether the two year process can be suspended, or whether a state which has started the process can change its mind and stop the withdrawal process. Nor is it clear what impact withdrawal from the EU would have on the withdrawing state’s relationships with other European bodies, such as the European Economic Area (the EEA). Where a matter of EU law is unclear, the Court of Justice of the European Union (the CJEU) in Luxembourg is the only authoritative source of a binding answer. And Article 267 of the Treaty on the Functioning of the European Union provides a mechanism by which a national court dealing an issue of EU law can seek a preliminary ruling from the CJEU. So, any party to a case raising an unclear issue of EU law, such as Article 50, can ask the court to refer that issue to the CJEU.
The plaintiffs seeking a reference from the High Court to the CJEU about the meaning of Article 50 are likely to be Members of the European Parliament for various UK constituencies [a draft statement of claim is here (pdf)], possibly including some from Northern Ireland. It’s constitutional litigation, but really the continuation of politics by other means. Nevertheless, the sight of politicians making constitutional arguments about political grievances is not an unusual one in Irish courts.
The Judicial Appointments Commission Bill: guiding principles and the eligibility of academics
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. Read more
Article 50 in the Irish High Court: cometh the hour, cometh the case?
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. Writing in today’s Irish Times, Jolyon Maugham QC of Devereux Chambers, London, makes an intriguing suggestion as to how the CJEU might come to provide that answer:
Ireland, do the UK a favour: refer Brexit to Europe
A legal decision that article 50 is revocable would allow for change of mind about leaving
… In a wide ranging interview with London’s Financial Times, Koen Lenaerts [President of the CJEU] observed there are “many, many different ways” that Brexit could end up before him. … if the UK courts will not refer the revocability of article 50 to the European Court, might the Irish courts? They could and they should.
[links and emphasis added]
Apart from the political and practical concerns with this suggestion, there are at least two big legal questions here – Maugham’s “could”, and Maugham’s “should”. As to “could”, how could the Irish courts come to make a reference to the CJEU on the issue of the revocability of Article 50? What is the nature of the case that poses the question? What are the facts that compel the High Court in Dublin to make the reference? Who are the parties (plaintiff(s) and defendant(s))? What is the plaintiff’s cause of action? What remedies does the plaintiff seek? One of the many lessons of Re McCord [2016] NIQB 85 (28 October 2016) and R (Miller and dos Santos) v Secretary of State for Exiting the European Union (Rev 1) [2016] EWHC 2768 (Admin) (03 November 2016) is: cometh the hour, cometh the cases. I can see the outlines of at least four possible cases; doubtless there are others; [update: a potential fifth, which is already before the courts, was drawn to my attention on twitter here and here]; indeed, if a case in the High Court does end up making a reference to the CJEU, I would not be at all surprised if it were to be founded upon an entirely different set of facts. Read more
The Origins of Genocide and Crimes Against Humanity
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. His book East West Street formed the basis of the documentary film My Nazi Legacy: What our Fathers Did (2015 | imdb).
This lecture is part of the Sydney Gruson lecture series organised by the Herzog Centre in the Department of Near and Middle Eastern Studies, Trinity College Dublin, and the Holocaust Education Trust Ireland.
Copyright reform and 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. Read more
Publication of the copyright reform Bill comes a few steps closer
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?
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