Category: Legal Education

Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

Government Buildings by night, via Wikipedia

Government Buildings,
Merrion Square, Dublin.
Image via wikipedia
Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer. It is also likely to cover incoming requests from overseas to access to data held in Ireland. It may also include preparatory work for the response to the investigations being carried out by retired Chief Justice John Murray and retired Supreme Court judge Nial Fennelly. However, at present, this is just speculation, so we shall have to wait and see what the Department has in mind.

As to the administration of justice, priority legislation to be published by the Department of Justice and Equality this session includes a Bill to make provision for periodic payment orders to replace lump sum damages, and a (hastily-promoted?) Bill to establish the long-awaited Judicial Council. Indeed, that Bill is expected to undergo pre-legislative scrutiny this session, as is a Bill to replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission – indeed, the cabinet agreed yesterday to bring forward the heads of such a Bill by November. All of these developments are very welcome – provided that the Appointments Bill permits legal academics to apply for appointment to be bench, especially at appellate level. It would not be difficult to draft the necessary legislative provisions, and there is no reason in principle not to do so.

As to cybercrime, first, the busy Department of Justice and Equality is promoting the Criminal Justice (Offences Relating to Information Systems) Bill 2016, to implement Directive 2013/40/EU on attacks against information systems. It is on the Dáil Order Paper, awaiting Second Stage. Second, in the ‘I’ll believe it when (if) I see it’ category is the long-promised and almost long-forgotten Cybercrime Bill to give effect to the Council of Europe Convention on Cybercrime 2001. Yes, you read that right, it’s a 2001 Convention. It is 15 years old, which is a lifetime online.

As to education, legislation envisaged at some stage from the Department of Education, but probably not in this session, includes the Higher Education (Reform) Bill and the longer-threatened Universities (Amendment) Bill (critiqued here, here, here, and here). And the Technological Universities Bill 2015 remains on the Dáil Order Paper, awaiting Committee stage.

As to intellectual property, pre-legislative scrutiny is expected shortly on the Knowledge Development Box (Certification of Inventions) Bill. Heads of a Bill to amend Article 29 of the Constitution to recognise the Agreement on a Unified Patent Court were approved on 23 July 2014, though, in the light of Brexit, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Jobs, Enterprise and Innovation to the Oireachtas. Finally, the Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill has been “referred to committee” pre-legislative scrutiny. This is presumably the Joint Committee on Jobs, Enterprise and Innovation. However, the Bill is not in the pre-legislative scrutiny list for this session, so we probably won’t see it in committee before Christmas.

As to privacy, the most important piece of legislation mentioned in the Programme is the Data Protection Bill, to transpose the EU Directive 2016/680 and give full effect to the General Data Protection Regulation (Regulation 2016/679). Heads are expected before the end of 2016 (but I’m not holding my breath). A Data Sharing and Governance Bill will be published and sent for pre-legislative scrutiny, to mandate and facilitate lawful data-sharing and data-linking for all public bodies, and a Health Information and Patient Safety Bill go further in the context of health information. In both cases, the drafting will be tricky, not least because the Bills will have to be compliant with the decision of the Court of Justice of the European Union in Case C?201/14 Bara. The Criminal Records Information System Bill and the Passenger Name Record Bill implement EU obligations. However, in the case of the latter, since there is a challenge before the CJEU in respect of a related measure, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Justice and Equality to the Oireachtas.

Finally, it is heartening to see that work has commenced on a Bill to remove blasphemy from the Constitution, and interesting to see active proposals to establish an Electoral Commission and to amend the transfer of records in the National Archives from 30 years to 20 years.

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CAO cynicism

Level8, via FlickrIt’s that time of the year when the Central Applications Office (CAO) makes offers of third level places to Ireland’s school-leavers. Places are allocated on the basis of a complex but transparent system of supply (of [level 6, level 7 and level 8] courses by third level institutions), demand (for courses by school leavers), and grades (obtained by school leavers in the second level terminal examination, the Leaving Certificate). The grades are converted into points, and the number of points of the last-admitted candidate to a course can be regarded as the cut-off for qualification for entry to that course. The race for points for College places has become increasingly utilitarian over recent years, and the headlines this morning are no different:

Stem steams ahead as students abandon the arts ship

Points for arts courses fall to a new low as students question value of such degrees

Students have been bombarded by calls to study science, technology, engineering and maths (STEM) over the past few years. The message seems to be working, as points for those courses have risen across the board for the first round of CAO offers. Points for arts courses have fallen to a new low as students question the value of those degrees, …

Also: CAO offers: Sharp points rise for courses linked to recovery – Engineering, architecture, construction and business up as arts falls to new low; Focus on construction and engineering results in higher points – Points drop across the board for arts and social science degrees; Business and technology jobs surge as over 52,000 receive CAO offers – Students target courses to give them skills to travel globally.

If the drop in points for Arts, Humanities and Social Science (AHSS) courses is because of a drop in demand, and if that drop in demand is because students are questioning the value of such degrees, this would be, to say the least, unfortunate. It reminds of me of the definition of a cynic given by Lord Darlington in Oscar Wilde’s Lady Windermere’s Fan as someone “who knows the price of everything, and the value of nothing”. (more…)

Points for Law on the second round

Central Applications Office animated logo, via their siteThe Central Applications Office (logo left) processes all applications to first year undergraduate courses in the country’s various third level institutions. Offers are made for places on courses based results in the Leaving Certificate. The first round of offers was August 20; and the acceptance deadline was August 27. By then, a record total of 37,645 applicants had accepted offers – more than three-quarters of the 49,862 offers made. This morning, the CAO made a second round of offers to another 1,185 college applicants. Effectively, for a few courses, the points level will have dropped. Very few law courses made second round offers, but the few changes to the points I set out in a previous post are as follows (the round 1 points are listed first; the round 2 points are listed second in bold):

            Points Required for Entry to 2012 Level 8 Courses



University College Cork
CK302 Law and French 515 500
CK304 Law and Irish 530* 530
CK305 Law (Clinical) 535 530
CK306 Law (International) 550* 550

Dublin Business School
DB514 Business and Law 235 195
DB568 Law 275 230

NUI Galway
GY250 Corporate Law 350 340

Points for Law

Central Applications Office animated logo, via their siteThe Central Applications Office (logo left) processes all applications to first year undergraduate courses in the country’s various third level institutions. Those institutions inform the CAO of the number of places in a given course, and the CAO’s computer will allot places on the course on the basis of results in the Leaving Certificate, a state examination at the end of secondary school. The grades of the last-admitted candidate can be regarded as the cut-off for qualification for entry to that course. Those grades are assigned points, and the entry requirement for any given third-level course in any given year can be represented in terms of points. This year, the first round of offers of places in third level institutions was made this morning, and the cut-off points levels for their 44 50 law offerings are below.

            Points Required for Entry to 2012 Level 8 Courses

Athlone IT
AL057 Business and Law 270
AL058 Accounting and Law no points stated

Carlow IT
CW708 Law 305
CW938 Business with Law 315

University College Cork
CK301 Law 475
CK302 Law and French 515
CK304 Law and Irish 530*
CK305 Law (Clinical) 535
CK306 Law (International) 550*

Dublin Business School
DB514 Business and Law 235
DB568 Law 275

Dublin City University
DC230 Economics Politics and Law 390
DC232 Law and Society (BCL) 410

Dublin Institute of Technology
DT321 Business and Law 400
DT532 Law 350

Griffith College Dublin and Griffith College Cork
GC203 Law (Cork) 315
GC403 Law (Dublin) 305
GC404 Business and Law (Dublin) 250

Trinity College Dublin
TR004 Law 525*
TR017 Law and Business 565
TR018 Law and French 565
TR019 Law and German 525
TR020 Law and Political Science 575

University College Dublin
DN009 Law (BCL) 495
DN021 Business and Law 495
DN028 BCL Maîtrise 525
DN029 Law with French Law (BCL) 560
DN060 Law with History 500
DN065 Law with Politics 510
DN066 Law with Philosophy 495
DN067 Law with Economics 515

NUI Galway
GY101 Arts 300 (depending on subject choice and progression rules, this can lead to a BA in Legal Science)
GY250 Corporate Law 350
GY251 Civil Law 405

Limerick IT
LC231 Law and Taxation 305

University of Limerick
LM020 Law and Accounting 415
LM029 Law Plus 405

NUI Maynooth
MH115 Law (BCL) and Arts 460
MH 119 Law 475
MH406 Law and Business 460

Waterford Institute of Technology
WD140 Law 295


            Points Required for Entry to 2012 Level 7/6 Law Courses

Dublin Business School
DB580 Legal Studies 105
DB581 Legal and Business Studies 170
DB582 Legal Studies AQA
DB583 Legal and Business Studies 100

IT Carlow
CW706 Legal Studies 270
CW926 Business with Law 250

Letterkenny IT
LY207 Law 140

Waterford IT
WD013 Legal Studies 225


This list follows the order provided by the CAO. The asterisk * means that not all on this points score were offered places, whilst AQA means all qualified applicants were offered places.

Update: When I first assembled this post, I missed 6 of the 7/6 Legal Studies courses. Thanks to Jennifer Kavanagh (blog | twitter) for giving me the heads up. They are now listed above; and that’s why I amended the number of courses mentioned in my first paragraph above.

Update (30 August 2012): the second round points are here.

Congratulations and good luck to those who accept places on these courses. Enjoy.

The IMF deal can change the Irish legal system for the better

Sunday Business Post, front page, 12 Dec 10, via their websiteIn yesterday’s Sunday Business Post, I argued that the IMF deal can change the Irish legal system for the better, reflecting arguments I have already made here and here.

IMF deal can change the Irish legal system for the better

The IMF deal has provoked a great deal of discussion, from its impact on our political and economic sovereignty, through the details of tax increases, state spending cuts and the implementation timetable, to the question of whether it needs to be ratified by Dáil resolution or even referendum. But there is a lot more to it than that.

IMF packages typically require structural reform to open the labour market and encourage competition in goods and services. The memorandum of understanding between the IMF and our government is no different. It requires the government to introduce legislation to remove restrictions on trade and competition in professions such as law, medicine and pharmacy. …

The IMF memorandum made it clear that all of the necessary legislation must be enacted by the end of the third quarter of 2011. This is probably not an impossible target, as these recommendations were not new in 2005 and 2006: many of them had been made in a report in 1990. Moreover, many other jurisdictions have already been down the same road. .. There are, therefore, many precedents to aid the Department of Justice in drafting the necessary legislation. It is unfortunate that successive governments have not implemented these reports.

Read the full piece here. Picking up on this, Rossa McMahon has rather dryly observed that the Government could help bring down legal costs overnight, but won’t. He concluded that if the IMF reforms “are implemented in the relatively short timeframe of the programme, they would represent something of a Big Bang for the professions”.

Bar Council unhappy with IMF proposals

Bar Council logo, via the Law Library websiteFollowing on from my post on the impact of the IMF bailout on Irish legal education, I see from today’s Irish Times that the Bar Council (logo left) is not happy with some of the proposals, in particular those directed to the establishment of an independent statutory Legal Services Commission:

Parts of legal sector reform ‘not in public interest’

CAROL COULTER, Legal Affairs Editor

THE BAR Council has criticised proposals concerning the legal professions in the Government’s four-year plan and in the EU-International Monetary Fund (IMF) programme of financial support. … Responding to queries from The Irish Times, the Bar Council said it welcomed aspects of the plan and the programme:

However, there are other aspects which have come as some surprise to the Bar Council, and which cause it concern, not because of any sectional or selfish interest but because they do not appear to be in the public interest.

… Bar Council chairman Paul O’Higgins SC said the Council had not been made aware of any detailed proposal to give effect to the establishment of an agency described as an “independent regulator” and it awaited details:

The Bar Council notes that the position of legal services ombudsman has recently been advertised in the national press. It is not clear how that position will interact with what may be a further State agency, namely, the ‘independent regulator’. …

Well, they would say that, wouldn’t they? The article finished with a quote from me:

the single most effective reform of the legal system would be the establishment of an independent regulator and the introduction of genuinely competitive tendering.

I don’t agree with the Bar Council’s point about there being a potential conflict between the Legal Services Commission and the Legal Services Ombudsman. The role of that office (which I welcomed when the current legislation was initially published) is to oversee the handling by the Law Society and Bar Council of complaints by clients of solicitors and barristers. The Ombudsman is independent in the performance of the functions of the office. There is no reason why this function could not simply be folded into the more general Legal Services Commission. For example, the Ombudsman could be a member of the Commission, and the Ombudsman’s office could be a division within the broader functions of the Commission. Moreover, there is no reason why the Ombudsman should not be given greater powers in respect of disciplinary matters relating to both branches of the profession: in particular, that office could be the first port of call for parties seeking to complain about a solicitor or barrister, and not simply be an appeal body from an internal complaints system.

Other divisions within the Legal Services Commission can take up the other functions recommended by the Legal Costs Working Group in 2005 and the Competition Authority in 2006. One of these concerns extending the provision of professional legal education beyond the monopolies currently enjoyed by the Law Society in training solicitors and the King’s Inns in training barristers. Most other common law countries have gone this route. In my view, it is long past time for Ireland to do the same. My only regret is that is has taken the IMF to make us do it!

The impact of the IMF on Irish legal education – Updated

IMF logo, via the IMF wesbiteI never thought I’d see the day when I’d put both the International Monetary Fund (IMF) and Irish legal education together in the title of a blogpost. But there it is, above. And this is because the summary of the the Joint EU-IMF Programme for Ireland on the Department of the Taoiseach website suggests that there will be consequences for legal education:

Competition

Removal of restrictions to competition in sheltered sectors including:

Legal profession:

– establish an independent regulator;

– implement the recommendations of the Legal Costs Working Group and outstanding Competition Authority recommendations. …

The enhancement of competition and the reduction of regulation in sheltered sectors is a standard IMF prescription, so this recommendation comes as little surprise. As for its details, the Legal Costs Working Group was established in 2004 and asked to look at the way in which legal costs are determined and assessed, and it reported in 2005 (pdf). In December 2006, as part of a series of reports on regulated professions, the Competition Authority published a Report on the Legal Professions which determined that the legal profession was in need of substantial reform. (more…)

Futher points of law

Central Applications Office animated logo, via their site

The CAO needs no introduction to the present generation of school-leavers or their parents. Since 1976 it has enabled our institutions of third-level learning to reconcile annually the choices of the hopefuls — more than 60,000 last year — seeking to embark on a chosen career path.

This is how Fennelly J began his judgment for the Supreme Court in Central Applications Office v Minister for Community Rural and Galeltacht Affairs [2010] IESC 32 (13 May 2010). The Court granted a declaration that respondent Minister did not have the power under the Official Languages Act, 2003 (also here) to designate the applicant as a public body subject to obligations imposed by the Act concerning the conduct of its affairs in both official languages. The CAO today publishes its second round of offers of third level places for the forthcoming academic year, and in the inauspicious technical landscape of a Supreme Court appeal, Fennelly J provided an excellent primer on the operations of the Central Applications Office (the CAO; logo, above left):

is a company limited by guarantee and is a non-profit body. It was formed in 1976 and is based in Galway. … The State has no responsibility for its operation. The members of the CAO are the third-level institutions which it serves. Prior to the establishment of the CAO in 1976, there was no centralised system for processing applications from students seeking admission to third level. … The universities … decided to form a single body to process applications. The CAO now has 44 participant Higher Education Institutions …

The process by which the CAO matches applications (from students) and offers (from institutions) is as follows. Each student makes a single application to the CAO early in the year. The student specifies, in order of preference, the preferred colleges and courses of study. Each institution decides on the number of places it will offer in each category and informs the CAO. The CAO relates the student’s application with [that student’s] Leaving Certificate results. It then makes an offer to the student on a form described as “offer notice” which specifies the course being offered and the institution offering it. It invites the student to return a part of the form specifying acceptance. …

This is a far more elegant explanation than the one I essayed in an earlier post, in which I went on to explain that grades of the last-admitted candidate to a course can be regarded as the cut-off for qualification for entry to that course, and that these grades can be expressed as a function of points in a range from 0 to 600. In that earlier post, I set out the points levels for entry into various law courses on the basis of the CAO’s first round of offers.

Each year, not all of the CAO’s offers are accepted, with the result that some courses have vacancies. The third level institutions notify the CAO of the vacancies, and it issues a further round of offers. Where the points of the last-admitted candidate on this round are lower than those of the last-admitted candidate in the first round, the CAO also publishes the revised points cut-off. This year, the second round of offers of places was made today, and the points requirements for some law courses were revised accordingly. (Of course, some of these offers will not be accepted, and the third level institutions and the CAO will continue to make further offers as necessary to fill their courses).

In the table below (after the jump), I set out the final points requirements for law degrees in the various third level institutions. The first number, in bold font, is the final points requirement. Where the points were revised in round 2, the points for round 1 are then set out in regular font, prefaced by “R1:”. Finally, for the sake of completeness, where the course was offered last year, the final points for 2009 are set out in italics in parentheses. (more…)