One of the most entertaining pieces of evidence that Lord Justice Leveson heard during his inquiry’s hearings into the culture, practice and ethics of the press concerned UK Prime Minister David Cameron‘s understanding of the popular sms abbreviation LOL. He had thought it stood for “lots of love“, and had used it to sign off his texts to Rebekah Brooks (sometime Editor of the News of the World, and the Sun, and CEO of News International), until he discovered that it in fact stands for “laugh out loud” (see transcript for 11 May 2012, p76 (pdf)). Given his rejection on Thursday afternoon of the main press regulation recommendations in Lord Justice Leveson’s Report (also here), published on Thursday morning, he is obviously laughing out loud at the Leveson Inquiry, not showering it with lots of love.
In essence, Leveson recommends that the press ought to be overseen by an independent self-regulatory body, with statutory underpinning, and governed by an independent Board. In so doing, he is adopting the basic structure of the Press Council of Ireland and the Office of the Press Ombudsman which were established by the media industry in Ireland and given statutory recognition pursuant to section 44 of, and Schedule 2 to, the Defamation Act, 2009 (also here), and described in great detail by John Horgan, the Press Ombudsman, to the Inquiry. Unfortunately, Cameron misdescribed the Irish system in the House of Commons last week (see Hansard 29 Nov 2012 Columns 446-482).
He said, several times, that “no matter how simple the intention of the new law, the legislation required to underpin the regulatory body would be more complicated”. If the Irish system is taken as a model, then this is simply not true. The Irish legislative provisions run to one section of the Defamation Act, 2009, and a Schedule to that Act that is less than two pages long. A law that provides for statutory underpinning that describes what the regulatory authority does, what powers it has, and how it is made up, does not have to be “quite a big piece of law” – it can be done, and has successfully been done, in less than three pages. He sought to reinforce his point with a piece of political theatrical bravado:
I have got the Irish Defamation Act of 2009 in front of me. It runs to many, many pages, setting out many, many powers of the Irish Press Council. It is worth Members of the House studying the Irish situation and asking whether we want to have legislation of that extent on our statute book—which of course could then be amended at any moment, by any politician at any future point. That is an important consideration. …
The point I am making is that putting in place underpinning may well turn out to be not as simple as having a one or two-clause Bill. We would have to start defining what the body is, what the body does, what powers it has and what the extent of it is, rather as there is in the Irish system. Once we have done that, we would be in danger of finding that we have put in place a statutory Act on the press that is then very, very easy to amend. My point is that this House of Commons should pause, stop and think before taking a step of that magnitude. …
Of course the Defamation Act, 2009 runs to “many, many pages” – it is, after all, an Act of 44 sections and 2 Schedules. However, it is not confined to providing a mechanism of statutory recognition of the Press Council; rather, is a restatement of the entire law of defamation in Ireland; and given that scope, it is in fact a model of economy of language. More to the point, the provisions relating to the Press Council and Press Ombudsman run to less than three pages. Hence, if the Commons does take up Cameron’s challenge of “studying the Irish situation and asking whether we want to have legislation of that extent on [the UK's] statute book”, then a study of the Irish position demonstrates the Leveson recommendations can be implemented not with complexity but with brevity.
Journalist Anton McCabe (pictured left) has written a book about The House that Disappeared on Tory Island (Drumkeen Press, 2012), which was launched by former editor of the Irish Daily Star Michael O’Kane. Film-maker Neville Presho bought a house on Tory Island, but it vanished whilst he was abroad. I have written on this blog about the resulting court case. Now Anton McCabe tells the whole sad story. At the launch of the book, he said, “It is a great story and a true testament to … [Presho’s] refusal to give up his fight for justice”.
In advance of the launch, McCabe gave an interview to the Ulster Hearld which explained his involvement in the case:
I had been going to Tory Island for quite a number of years and islanders had told me they were unhappy with what had happened … Going over in the ferry at Easter 2003, I was standing on the prow of the boat when I fell into conversation with another man before I realised he was the householder, Neville Presho. He was surprised I knew so much and had gone through a terrible time by then. Soon after that, which was ten years after the house had been destroyed, things started to happen. …
Neville arrived on Tory Island to find his house was gone. He hasn’t been able to work in over a dozen years and it has destroyed his life. It was a most extraordinary tragedy on a personal level for him. …
Update (2 Jan 2013): By Louise Cullen on BBC NI News:
The story of how a 150-year old house on an island off the Irish coast simply vanished has become the subject of international fascination, as the owner turned to the courts [judgment here] to find out what had happened to his Tory Island retreat. …
“Older islanders say that my film, An Oileán or Island, was the best film that was ever made on Tory,” said Neville [Presho, pictured above right]. …
Over the years since he discovered the house had vanished, Neville suffered poor mental and physical health. His career ended and his marriage broke up. … But his feelings for the island and its people whom he loved have not changed. …
Last week, the President of Ireland, Michael D Higgins, in response to questions from reporters during an official visit to Liverpool in the UK, made a number of unscripted remarks about a current political controversy in Ireland. The Presidency of Ireland is not an executive office in the same way as the Presidents of the US and France are – Ireland is a parliamentary democracy like the UK where the head of the executive is the Taoiseach (Prime Minister). Rather, the Presidency of Ireland is a largely ceremonial office, in much the same way as the Presidents of Italy and Germany are. As a consequence, the President’s remarks were seems as political and controversial. He denied overstepping the mark, and robustly defended his comments, but the incident has raised questions as to the limit of the President’s avowedly evolving role. Two articles recently published in the Irish Times neatly encapsulate the competing views. On the one hand, David Gwynn Morgan, Professor of Law Emeritus, UCC, argued that it was never intended for the president to act as a more effective opposition leader:
… the issue is whether he went beyond his proper authority. … There are large areas in which he may take an initiative. … But it is reasonable to expect, when the government has reached a decision or established a policy, that the president should refrain from criticising it in public. And this principle would naturally extend beyond the government to a public body like the Health Service Executive.
He bolstered this by arguing that, in the few cases where the President’s powers go beyond the ceremonial, and where he has to make what amounts to a substantive decision about the political process, he has the confidence of politicians and the public that he is “above politics”. But if he pushes the boundaries of the office too much, and is perceived as political by the politicians or the public, then the neutrality that is necessary for the exercise of those few substantive powers is lost.
On the other hand, Dr Eoin Daly, Lecturer in Law, UCD, argued that, whilst the Presidency is an eccentric and ambiguous institution, the President’s remarks last week were not at all inappropriate, and that Prof Morgan overstates not only the significance of what the President said, but also the broader constitutional requirement of presidential “neutrality”.
… it simply isn’t true that the Constitution confines the president to discursive platitudes – to saying nothing that might be interpreted as inconsistent with the policies of the government. There is some constitutional basis for the view that the president is bound to “neutrality” in public affairs, but it is vastly overstated. … there is no … restriction on the president’s public utterances generally – it would be impracticable for the government to review every item of presidential speech.
Thus our presidents enjoy some constitutional freedom in the values and principles they project. It is well within the presidential ambit to formulate a sense of national values and to articulate broad matters of national concern.
As to Prof Morgan’s argument that, in speaking out, the President risks losing the neutrality that is necessary for the exercise of his few substantive powers, Daly argues that such neutrality is illusory, where silence often simply reinforces the status quo.
In my view, there must be a very strong reason to restrict freedom of expression, with it is the rights of a person to comment on a politician, or the right of a politician such as the President to comment on a person’s plight. On the balance of the arguments between Morgan and Daly, I don’t find in the former a strong enough reason to restrict the President’s freedom of expression. Rather, in my view, Daly’s view is the more convincing. I therefore look forward to hearing more from the President as he pushes the boundaries of his office and comments on the issues he encounters as he does so.
In four previous posts, I looked at the Supreme Court’s per curiam in McCrystal v The Minister for Children and Youth Affairs  IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum, in breach of the prohibition in McKenna v An Taoiseach (No 2)  2 IR 10,  IESC 11 (17 November 1995). In particular, in the fourth, I considered the range of remedies which might be available for breach of that prohibition. I noted in that post that Part IV of the Referendum Act, 1994 (also here) provides for Referendum Petitions to challenge the conduct of a referendum. It comes as no surprise to learn that this procedure has now been invoked against the outcome of the referendum held on 10 November 2012 (Irish Examiner | Irish Independent | Irish Times | RTÉ | TheJournal.ie here and here | TV3). I expect the application to fail, but it has many interesting features which give it a fighting chance.
According to section 40 of the Act (also here), the referendum returning officer must aggregate the returns from all of the local returning officers, prepare and sign a provisional referendum certificate recording the votes and outcome in the referendum, and publish a copy of that provisional certificate in Iris Oifigiúil (the twice-weekly official Irish State gazette). This certificate was duly published in Iris Oifigiúil for Tuesday 13 November 2012, at pp1657-1659 (pdf).
According to section 42 of the Act (also here), the papers to commence a petition to challenge the provisional referendum certificate must be lodged with the High Court “not later than seven days after the publication in Iris Oifigiúil of the certificate”. This means that the papers for a petition in respect of the certificate gazetted on 13 November must be lodged on or before 20 November – today. Just ahead of this tight deadline, two intending petitioners made the necessary application yesterday. Mr Justice Iarfhlaith O’Neill directed that the State be placed on notice of the application, and he returned the matter to next Tuesday. Meantime, those behind the challenge are gathering their forces, and preparing their arguments.
According to Facebook’s “About” page, millions of people use the site everyday “to keep up with friends, upload an unlimited number of photos, share links and videos, and learn more about the people they meet”. That’s a lot of data, and Facebook has a detailed data use policy, but not everyone will be comfortable with every element of that policy. As well as the inevitable online contact form, Facebook invites questions or complaints about its data use policy or practices by mail, to its California headquarters for enquiries from the USA or Canada, or – since Dublin became the centre of Facebook’s international operations in 2008 – to its Dublin address for enquiries from everywhere else. So, when an Austrian student raised queries about Facebook’s data policies, the appropriate regulator was the Irish data protection commissioner. His story is the feature story on the front page of Ars Technica right now.
Max Schrems requested his personal data from Facebook, got a 1,000-page PDF.
The world’s largest legal battle against Facebook began with a class assignment. Student Max Schrems still hasn’t turned in his university paper on the topic, due well over a year ago, but he has already accomplished something bigger: forcing Facebook to alter its approach to user privacy. Now, Schrems wants cash—hundreds of thousands of euros—to launch the next phase of his campaign, a multi-year legal battle that might significantly redefine how Facebook controls the personal data on over one billion people worldwide. …
What began as an academic assignment in spring 2011 quickly morphed into an advocacy organization called “Europe vs. Facebook.” … As a way to compel Facebook Ireland to comply with existing EU law, Schrems filed 22 formal complaints with the Irish Office of the Data Protection Commissioner (ODPC) on August 18, 2011. … Schrems argues that Irish data protection authorities aren’t properly enforcing the law when it comes to Facebook, and he hopes that a judicial review will vindicate his position. If necessary, he plans to take his case all the way to the European Court of Justice in Luxembourg. … Working separately, an Austrian law student and an under-staffed Irish data protection watchdog have helped bring worldwide improvements to Facebook’s privacy policies. …
Read how they did it (with a few quotes from yours truly) in the full story on Ars Technica.
The europe-v-facebook support page is here.
Updates (3 December 2012): (1) A week after this post was published, Facebook proposed changes to its data use policies which have – inevitably – proved controversial. According to the Washington Post (with added links),
New Facebook policy conflicts with European law, concerns privacy advocates
… Regulators alerted Facebook about the problem shortly after the company announced major changes Wednesday in how it will treat users’ personal data, said Gary T. Davis, deputy data protection commissioner in Ireland. …
“Facebook is not really telling users what this means and how this is going to work,” said Jeff Chester, executive director of the Center for Digital Democracy. His group is planning to join the Electronic Privacy Information Center in complaining to the [Federal Trade Commission] (FTC) about the proposed Facebook policy changes. The agency declined to comment on Friday. …
Indentured servitude and a power akin to undue influence – contract reasoning in Pringle (ESM) and Sebelius (Obamacare)
Occasionally, Contract Law principles infiltrate into constitutional discourse. Two recent Supreme Court decisions illustrate the point, one from Ireland, the other from the US. Each relates to an issue of major political controversy and constitutional contention; and, in each, contractual reasoning is at the heart of a significant aspect of the judgments.
In the Irish case of Pringle v Government of Ireland  IESC 47 (19 October 2012) (noted here), the Supreme Court upheld the High Court’s decision to refer to the Court of Justice of the European Union various questions of EU law relating to the Treaty establishing the European Stability Mechanism (the ESM Treaty). In considering whether the ESM Treaty abrogated Irish sovereignty (in Articles 5, 6 and 28 of the Constitution) sufficiently to require an amendment to Article 29 of the Constitution to permit its ratification, Clarke J picked up on Hederman J’s dictum in Crotty v An Taoiseach  IR 713,  IESC 4 (9 April 1987):
The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution.
As a consequence, he analysed the sovereignty issue in contractual language:
8.3 … in international relations, as in very many other areas of public and private life, freedom to act will often, as a matter of practicality, involve freedom to make commitments which will, to a greater or lesser extent, limit ones freedom of action in the future. Persons are free to enter into lawful contracts. However by so doing the person concerned may restrict their ability to enter into other contracts in the future. It is inherent in certain types of decision that the decision in question will have a reach into the future to a greater or lesser extent. It seems to me to follow that the mere fact that decisions taken now can have such a reach cannot mean, on any proper analysis, that the relevant decision is necessarily taken to amount to an impermissible restriction on freedom to act in the future. If it were to be otherwise, parties, both in the private, public and international spheres would, in truth, be deprived of a significant freedom of action.
8.4 That is not to say that certain decisions may not be so far reaching and so diminishing of the freedom to act in the future that they can be said to amount to a denial of the very freedom exercised in making the decision in the first place. A person might commit to a contract of employment for (say) five years. In so doing it seems to me that such a person is exercising freedom of contract. To say that such a person has lost the freedom to deal with their services in whatever way they wished (within the law) would, in my view, be a mischaracterisation. Any contract of employment will, to some extent, restrict the right of the employee for some period into the future.
8.5 On the other hand a contract which amounted to little more than indentured servitude or slavery might well legitimately be characterised as one which, although agreed to, would nonetheless entirely negate the very freedom to contract for one’s services exercised in making the contract in the first place.
8.6 Without pushing the analogy too far, it seems to me that there are parallels in the international sphere. …
8.7 However there may be circumstances where the commitment entered into does, in truth, amount not to an exercise in sovereignty which has, as a necessary consequence, a narrowing of the freedom to act in the future but rather amounts to such a significant narrowing of future policy options so that it can be properly be said that there has been a transfer or pooling of sovereignty. This will be particularly so where those future policies by which the contracting parties are bound are as yet undecided and are to be determined in the future by others or by collective bodies.
8.8 The real question on the issue of loss of sovereignty seems to me to turn on the nature of the commitments entered into and the extent to which those commitments can truly be said to involve an abdication of the powers conferred by the Constitution, an alienation to others of such powers or the subordination of those powers to the interests of others.
Against that background, Clarke J characterised accession to the ESM Treaty as an exercise in sovereignty rather than an abdication or transference of sovereignty. In Germany, the reasoning of the Bundesverfassungsgericht on a comparable contemporary constitutional challenge is strikingly similar in its analysis of the democratic exercise of sovereignty, but it forgoes the contractual analogy. In other words, Clarke J in Pringle held that the ratification of the ESM Treaty was in the nature of a valid contract, rather than a coerced one.
(Update (27 and 28 November 2012): In Case C-370/12 Pringle v Ireland  ECR-I nyr,  EUECJ C-370/12 (27 November 2012), in answer to the questions sent by the Irish courts, the CJEU held that the ESM Treaty was compatible with EU law. There is an excellent assessment of the decision by Dr Roderic O’Gorman (DCU) on the Human Rights in Ireland blog).
In the US case of National Federation of Independent Business v Sebelius 567 US ___ (2012) (the US Supreme Court’s ‘Obamacare’ decision), the decision on the Medicad expansion of the Patient Protection and Affordable Care Act was all about contracts after all! The validity of that part of the Act which provided that the States had to extend their Medicaid programs or lose all their Medicaid funding turned on the Taxing and Spending Clause (Article I, Section 8, Clause 1) to the US Constitution, which Roberts CJ characterised as “much in the nature of a contract”:
… the legitimacy of Congress’s exercise of the spending power “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract’” …
That insight has led this Court to … scrutinize Spending Clause legislation to ensure that Congress is not using financial inducements to exert a “power akin to undue influence.” Steward Machine Co v Davis 301 US 548, 590 (1937). Congress may use its spending power to create incentives for States to act in accordance with federal policies. But when “pressure turns into compulsion,” ibid., the legislation runs contrary to our system of federalism. …
Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system. … when the State has no choice, the Federal Government can achieve its objectives without accountability. … in Steward Machine … [we] acknowledged the danger that the Federal Government might employ its taxing power to exert a “power akin to undue influence” upon the States … In rejecting the argument that the federal law was a “weapon[ ] of coercion, destroying or impairing the autonomy of the states,” the Court noted that there was no reason to suppose that the State in that case acted other than through “her unfettered will.”
… [In this case, where the Medicaid] conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes. … the financial “inducement” Congress has chosen is much more than “relatively mild encouragement” — it is a gun to the head. … The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.
Scalia J also adopted a similar contractual analysis in striking down this aspect of the Act:
When federal legislation gives the States a real choice whether to accept or decline a federal aid package, the federal-state relationship is in the nature of a contractual relationship. … And just as a contract is voidable if coerced, “[t]he legitimacy of Congress’ power to legislate under the spending power … rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” … If a federal spending program coerces participation the States have not “exercise[d] their choice”—let alone made an “informed choice.” … Congress effectively engages in this impermissible compulsion when state participation in a federal spending program is coerced, so that the States’ choice whether to enact or administer a federal regulatory program is rendered illusory.
In other words, Roberts CJ and Scalia J analysed a sovereignty issue in contractual language, and held that the Medicaid expansion was in the nature of a coerced contract, rather than a valid one.
For all that this contractual analysis may or may not be uncomfortable or even downright bad in a constitutional context (see, generally, James F Blumstein “Enforcing Limits on the Affordable Care Act’s Mandated Medicaid Expansion: The Coercion Principle and the Clear Notice Rule” (2011-2012) Cato Supreme Court Review 67 (pdf)), it is striking that in two of this year’s leading constitutional cases, the Courts adopted such a contractual approach.
This is my fourth and final post on the per curiam in McCrystal v The Minister for Children and Youth Affairs  IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2)  2 IR 10,  IESC 11 (17 November 1995). In my first post, I looked at the background to the per curiam. In my second post, I explored exactly what was forbidden by McKenna, and concluded that it prohibits intentional partisan government expenditure. In my third post, I concluded that the precise constitutional basis for that prohibition is that such expenditure is undemocratic, unfair, unbalanced, unequal or partial, and that it may be restrained because it therefore violates the right to an equal franchise (see also the posts here by Paul McMahon and here by Laura Cahalane, and this assessment by Conor O’Mahony). In this post, I want to look at the remedies which might be available to a citizen for breach of that right.
In McCrystal, the Court granted a declaration that the respondents had acted wrongfully in spending public money on a partisan website, booklet and advertising campaign in relation to the referendum. That declaration is itself a remedy, and the Court was unwilling to go beyond it and grant an injunction against the material. In the words of the per curiam, the Court did “not consider it either appropriate or necessary to grant an injunction”. The Court’s traditionally strong understanding of the doctrine of separation of powers is such that they are often unwilling to do more than to grant a declaration against the executive (see, eg, TD v Minister for Education  4 IR 259,  IESC 101 (17 December 2001)). This is often sufficient. For Barrington J in Hanafin v Minister for the Environment  2 IR 321,  2 ILRM 61  IESC 6 (12 June 1996), it was important to emphasise that, once the Supreme Court in McKenna had declared the unconstitutional impropriety, that provided the remedy: the “Government immediately acknowledged itself in the wrong and wound down its advertising campaign”. O’Flaherty J made a similar observation. And Denham J also took pains to point out that the Supreme Court had provided a remedy in McKenna.
There is, however, more than a hint in the McCrystal per curiam that if the government had not taken down the website and ceased distributing and publishing the material, then it might have become appropriate and necessary to grant an injunction. Of course, the government took the hint. But it does mean that, whilst the primary remedy for a breach of the McKenna prohibition would seem to be a declaration that the partisan expenditure is unconstitutional, an injunction to restrain that expenditure could be available where appropriate and necessary.
In previous posts, I noted that the Supreme Court in McCrystal v The Minister for Children and Youth Affairs  IESC 53 (8 November 2012) (also here) held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2)  2 IR 10,  IESC 11 (17 November 1995), and I explored exactly what was forbidden by the McKenna prohibition on intentional partisan government expenditure (see also the posts here by Paul McMahon and here by Laura Cahalane). In this post, I want to consider the constitutional basis for the that prohibition.
There is a strong strain of democracy running through the majority judgments both in McKenna and in its companion case Hanafin v Minister for the Environment  2 IR 321,  2 ILRM 61  IESC 6 (12 June 1996). For example, in McKenna, Hamilton CJ held:
The role of the People in amending the Constitution cannot be over-emphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone. … no interference with that process can be permitted because as stated by Walsh J in … [Crotty v An Taoiseach  IR 713,  IESC 4 (9 April 1987)] “it is the people themselves who are the guardians of the Constitution”.
As the guardians of the Constitution and in taking a direct role in Government either by amending the Constitution or by refusing to amend, the people by virtue of the democratic nature of the State enshrined in the Constitution are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.
The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994 but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures. …
The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes’ vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.
Denham J’s approach was even stronger – where the Chief Justice contented himself with the integrity of the democratic process, she conjured up a constitutional right to a democratic process in referenda: