Lex Ferenda

Gwynedd Parry at the University of Swansea has written up his 2006 paper on minority languages and jury service (which I missed in its original form, at the International Academy of Lingustic Law’s conference, being in another room at the time!). It’s published in the latest edition (June 2007, v 27 no 2) of Legal Studies, the house journal of the Society of Legal Scholars, which arrived in these parts earlier this week. The article is also available in HTML and PDF, but behind a paywall (most academic users should be able to see the pages if proxy settings are correct and your institution has subscribed, though).

Parry is arguing from a ‘citizenship’ point of view, rather than focusing on the ‘lingustic rights of the defendant’, and I think that is a wise choice. Outlining the legislative and constitutional backgrounds to both jury service and language rights in Ireland and Wales (and Canada for comparative purposes), he concludes that: “as far as jury service is concerned, speakers of Scottish Gaelic and Welsh are not ‘citizens“. With regard to Irish, he’s highly critical of the Mac Cárthaigh decision (where an applicant failed in his bid to secure an Irish-speaking jury). Continuing through an analysis of European and international law (primarily soft law and unimplemented treaties, mind you), he also addresses the problems that an attempt to provide for bilingual juries would face: including the challenge they would pose to ‘random selection’ principles. He does us the service of even setting out a draft amendment to the relevant provisions of the Juries Act, and concludes by returning to the citizenship point:

Jury service is an important obligation of citizenship. It is also a privilege of citizenship. Historically, ‘villeins and aliens’ and the politically disenfranchised were excluded from it. In present times, the rules on jury service eligibility in Wales and Ireland betray the fact that, despite the legislative reforms of recent years, Irish and Welsh-speakers continue to be treated as inferior citizens. Their citizenship is incomplete, because, as Irish and Welsh-speakers, they are disqualified from jury service. As this paper has sought to demonstrate, rectifying that injustice will not fundamentally undermine the jury as an institution, but will act as further affirmation of the full citizenship of the speakers of these ancient languages, and their right, as speakers of these languages, to participate in one of the public responsibilities of that status.

Andrew Keen’s new book, The Cult of the Amateur (mentioned in passing in these parts earlier this month, receives Lawrence Lessig’s strict scrutiny over here. Lessig concludes that the errors and assumptions in Keen’s book are in fact self-parody (I haven’t read the book yet, so I’m reserving comment for now!), and then sets out (in a detailed post, copied to a - yes - wiki entitled The Keen Reader) some particular examples. A fun one is Keen saying that “every defunct record label and round of newspaper downsizing are a consequence of “free” user-generated Internet content—from Craigslist’s free advertising, to free music videos, to free encyclopedias, to free weblogs.” I hope (for his sake) that there is one hell of a footnote to that; otherwise, it’s just like shooting fish in a barrel. I’ve been looking forward to reading Keen’s book, and now that there is a good old-fashioned factcheck and spat breaking out (the use of the wiki format for it must annoy Keen to no end), it’s certainly a must-read.

A sort of manifesto from Ben Myers at the Guardian, praising the joy of secondhand book shops. (Sadly, it took less than 90 minutes for someone to pop up and claim that writers are being ’screwed’ by secondhand shops, as ‘they get nothing’. Oh how the publishers and the agents would love to get their thirty pieces of silver).

On the end of Greene’s (see here), Ruth (rightly) wonders why there wasn’t more of a fuss. The island of writers? Please.

The Resource Center for Cyberculture Studies, an online information source, puts together a great series of book reviews. I use it a lot, so it’s worth sharing. Reviews, reviews and more reviews here. I’m going to be reviewing Charles Acland’s collection of essays (by various authors) on Residual Media, in the near future.

Not for Safari. Drat.

More here.

Six weeks after the statutory deadline had passed, I received a response to a Freedom of Information request I made to the Broadcasting Commission of Ireland regarding the March decision to ban the original version of Trócaire’s gender equality advertisement from independent radio and TV. (To get up to date, you should look at Eoin’s two posts (1, 2) that contain full links to contemporary news coverage, blogging, legal precedents, etc). Given the recent BCC decision on the “Europe Direct” advertising (which I wrote about here) and the BCI decision on the Irish Autism Association campaign (which Eoin wrote about here), it is absolutely clear that the issue of political advertising (and the interpretation of the relevant provisions of the broadcasting laws) will not go away.

I requested correspondence (incoming and outgoing, email/letters/notes of phone calls/etc) regarding the advertisements, and meetings of any minutes where the matter was discussed. I received hundreds of pages - most of which are complaints sent by members of the public - 99% of which were critical of the decision. (One delightful writer, “a 43 year old man” did congratulate the Commission, as “this shameless promotion of sexist ideas is sickening”. Quite.) The complaints are very useful to the researcher (and if you’re doing work in this area, let me know if you would like a copy), but in this post I’m concentrating on some interesting points I’ve gathered from my reading of the BCI’s statements, in particular those emails/notes that add detail to material that is already in the public domain.

Read more »

Very interesting news (passed on by the Society of Legal Scholars (and don’t forget the Society’s conference in Durham this September!) regarding ‘public bodies’. Defining what is and isn’t a public body (public authority) is difficult - but is increasingly a crucial issue. (In my own research, the question of the status of bodies like Nominet is an interesting - and unresolved - one). It should interest anyone with an interest in administrative law, in regulation, in law and technology (or any aspect of modern, changing law where contracting out and third-way solutions are in vogue) and so on. It’s also a fundamental question in terms of human rights law, and that’s where it has arisen in the UK.

See, the (UK) Human Rights Act provides (at s 6) that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.” (Act includes failure to act). It goes on to define public authority as including “(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature” - excluding Parliament and also where “the nature of the act is private”. Therefore, defining a body (and its act or failure to act) as a public authority is a fairly crucial step if you wish to challenge the lawfulness of a decision.

A number of cases (in particular the Leonard Cheshire case) have caused NGOs in particular to express concern about the amount and type of bodies that are excluded from HRA scrutiny. An excellent report was produced by the Joint Committee on Human Rights (full text), and this Bill is the result.

The Bill is simple - it just provides an interpretation for the purpose of s 6 of the HRA (not an amendment to the HRA, thus not opening that particular can of worms!) as follows:

A function of a public nature includes a function performed pursuant to a contract or other arrangement with a public authority which is under a duty to perform that function.

Simple, (probably) effective, and (in my view) right. (However, it wouldn’t solve all problems…)

It’s up for second reading on June 15th, and has been supported by various members of the Joint Committee (the proposer is the chair of the committee). Worth watching. Since proposer Andrew Dismore (a lawyer and a Labour MP) has a record of getting 10-minute rule bills through the House, it may indeed be possible.

The annual report of the Information Commissioner is out. Get it here (pdf); comment from RTÉ. More from me later.

Marcel Berlins has a perceptive piece in today’s Guardian about Internet publishing and fair trials. He wonders about the future of the ‘fade factor’ in relation to the publication of pre-trial information (i.e. that material published in year X is unlikely to be a cause for a finding of prejudice in year Y) - if the juror can just Google the defendant, is there much of a difference between a new and an old article that discusses matters not properly before the court?

Berlins mentions that research has been commissioned. Good. I wonder how they will address the question of searchable, open-access news archives vs ‘difficult’ deep-web and subscription sources. Not to mention Wikipedia-type pages (which will keep changing, as opposed to a newspaper!) On the other hand, any notions of fade factor etc have developed in response to previous ‘new media’ (like mass-circulation newspapers); so it’s not entirely a new issue. I have a feeling that they’ll be able to identify an underlying principle. That said, there seems to be a perverse glee in ‘getting around’ publication bans (a fun and less serious example is early publication of Canadian electoral results, as discussed before - or indeed the great Irish one of finding a drink on Good Friday) so that has to be a factor - I can easily imagine a Spartacus or Googlebomb effort to make sure that a juror could find excluded material through a simple search!

Linda Greenhouse takes a whimsical look at the (US) Supreme Court’s caseload, discussing the case of Hackworth v Progressive Casualty Insurance Co. (pdf of the decision being appealed). The case (which hasn’t yet been accepted by the Supreme Court, or granted certiorari as the Court would put it) deals with a curious question: whether 75 miles means as the crow flies or by road. The statute is unclear, but the relevant regulator (the Department of Labor) decided it as ‘by road’ in subsequent regulations. For Hackworth, who is seeking the protection of family leave law, this means that her employer could avail of an opt-out from that very law - but if 75 means 75 directly rather than by road, the employer loses the opt-out and she wins her case (potentially).

Greenhouse’s article is a useful illustration of the importance of secondary legislation and of administrative law (although her line is more in terms of constitution v statutes, that is what I take from it!). It’s something that I reminded students in my tutorial groups during the year - in this university, administrative law is the second half of a year-old Constitutional Law 2 course (the first half is fundamental rights). Ultimately, seemingly ‘unglamorous’ case can be interesting in terms of where the parties end up, what it says about administration and power, and indeed how it relates back to the rest of the legal system.

As an aside (although also a good teaching tool regarding the role of interpretation acts) , I don’t think this particular dispute would arise under Irish law. The Interpretation Act 2005 provides (at s 18(e)

Distance. A word or expression relating to the distance between two points and every reference to the distance from or to a point shall be read as relating or referring to such distance measured in a straight line on a horizontal plane

However, there appears to be no similar provision in the US (it’s not even mentioned in the opinion of the appeal court) so they found that Congress did not speak to the matter, and that the regulation was not unreasonable (within the framework of the famous Chevron case). Indeed.