Lex Ferenda

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.

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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.