Lex Ferenda

To make matters worse, the plaintiff in this case was himself a judge, albeit in the unglamorous area of administrative law. (emphasis added)

I object!

(From a Guardian report on the infamous judge-sues-the-pants-off-dry-cleaners case (which itself is not an admin law case)).

Some of the most interesting and relevant issues the development of Irish law in recent years (refugee status, industry regulation/deregulation, tribunal procedures, and more) have been core questions of administrative law. For the social activist, knowing admin law (and knowing how to spot the screwups, or to seek change) is crucial. As Ireland (and other similarly situated countries) continues on the road to government-by-thousands-of-agencies (not to mention the various Commissions for Insert Sector Regulation), administrative law (and by proxy, the study of regulatory theory and general issues of procedure and of separation of powers) will, I believe, become more important, more relevant, and yes, more glamorous (even without the celebrities).

I was lucky enough to have the opportunity to teach three tutorials in admin law this year (the first on theory and development, the second on the standard of review (including human rights) and the third on bias). The course (taught by lecturer Dr. Eoin Carolan) has a certain level of urban myths about being ‘difficult’. I do feel that as students work through the course, many of them become prepared to change their mind about this ‘unglamorous’ subject (despite what Mr. Pilkington of the Guardian might say!)

Or am I just kidding myself? You tell me.

(edited to clarify the point of the last paragraph)

Lessig … 2.0!

As mentioned last week, Lawrence Lessig has brought his technology-law research to a close; today, though, he also relaunches his site and blog. And it had to be 2.0, of course

I realise that my link to the consistently useful lo-fi librarian disappeared in one of my own upgrades/crises/migrations, so it has now been restored to its rightful position. Hurrah for that.

Blogging may be a little quiet for a couple of days, as I need to move (about 500m but with stairs and rain in between, and the hundreds of books won’t walk it themselves), and am in Cork at the end of the week.

Welcome back to my blog - happily polluting the blogosphere since 2006, but just one element of my forthcoming blook. Today I spent some time with my social networking, and debating whether to set up a vlog - but I’d prefer something that was more in tune with the folksonomy trend, know what I mean? I think a webinar about netiquette would be a good compromise - with a follow-up wiki. That’s the way the cookie crumbles (sorry). Byebye!

(Most Annoying Web Words Revealed)

Thunder

1. No doubt you have read about the sorry tale of one company by the name of Sky Handling Partner, who have made threats against our own Damien Mulley. I guess it is much easier to send a nasty legal letter than to apologise or simply to do the decent thing, whatever that may be. This is a storm, and it has caused no amount of negative publicity (not to mention Google juice) for said company. I hope Damien kicks their sorry asses around the airport. But then I would say that, wouldn’t I? (As it happens, the Tom Raftery, Tim O’Reilly and Web 2.0 story was around this time last year. Lesson: don’t mess with Irish bloggers)

2. The life of a critic is hard - all that food/opera/reading/gigs/insert your pleasure here. A few cases have come together, relating to food critics and defamation law (Eoin’s post contains over a hundred links and is already a Wiki-like key jumping-off point for any further research on the topic). Today, a Court of Appeal decision in the UK relating to a particularly stinking review of an opera (summary from Roy Greenslade | full text via Bailii) gives some good news (for a change) to would-be reviewers. Lesson: has the fat lady sung, or is she just waiting for her main course?

Rain

The above incidents, though, could be characterised as thunderstorms. Dramatic, sudden, hard to miss while they are happening, but ultimately blowing over (hopefully for Damien, the sooner the better!). I think that it’s the consistent strategies adopted by businesses (and others, but mostly ‘corporations’ as we would say, spitting out the word), though, that concern me more - without taking away from the seriousness of the thunderstorms (especially for those involved), it’s the constant rain that will get us in the end. (I’m struggling with this weather structure for two reasons: first of all, I had to buy a new umbrella today - the day after midsummer; secondly, the post title is a lyric from Shaun Davey’s Granuaile, which I saw performed in (soggy) Dublin tonight)

For now, I’ll highlight two particular manifestations of this trend. (Obviously, those familiar with SLAPPs and so on know that this is far from a new issue). The first is the way that companies are encouraged to take the ‘danger’ of the world wild web seriously, and to react aggressively. I could not ask for a better demonstration than this article (subscription probably required), Holding Companies to Account in Cyberspace: The Threat Posed by Internet-based, Anti-corporate Campaigners by Tom Burns of Aberdeen. It essentially is a how-to manual for dealing with your critics - covering legal and non-legal responses, and with helpful hints on things like where to sue for defamation (England, obviously) and setting up a ‘lockbox blog’ (to be released after some kind of crisis). The second is the outsourcing of this sort of defensive strategy - ReputationDefender being the clear example, although primarily geared towards individuals (who pay a fee, of course). Wired news report, recent slashdotting. They have a premium service for businesses (MyEdge) where they will counter negative publicity (apparently by creating lots of positive comments etc - should they talk to Sky Handling Partners?)

Is the flood coming? Or are we already drowning? And what’s that noise?

These folks.

I was on Today FM last night (”The Last Word” presented by Matt Cooper) along with Dr. Gary Murphy of DCU, discussing the Byzantine system for electing members of the Irish Senate (Seanad). Here’s the audio: WMV stream or MP3 (right click to download) (four minutes in).

While the public and the media have been distracted by the story of Napster, warnings about the evils of “piracy,” and lawsuits by the recording and film industries, the enforcement of copyright law in the digital world has quietly shifted from regulating copying to regulating the design of technology. Lawmakers and commercial interests are pursuing what might be called a technical fix: instead of specifying what can and cannot be done legally with a copyrighted work, this new approach calls for the strategic use of encryption technologies to build standards of copyright directly into digital devices so that some uses are possible and others rendered impossible. In Wired Shut, Tarleton Gillespie examines this shift to “technical copy protection” and its profound political, economic, and cultural implications.

• Amazon
• MIT Press page
• Recorded lecture on this topic by the author
• Official site for the book
• Author’s blog

Now that Lawrence Lessig has announced that he is moving on to new academic and activist pastures, it must be time for the invention of postlessigism as a term? Anyway, Gillespie’s book (out this month) picks up on and expands Lessig’s work in Code, with a strong communications studies background (my thesis involves a similar blend, although with different elements of each). I’m looking forward to this book; what I’ve seen from extracts and lecture clips, it is a topic I’m quite familiar with, but having a book-length focused discussion of DRM and the technology/law/politics relationship is exciting.

Heuston Station according to RTÉ news this morning (subsequently corrected).

At the end of May, I wrote about an important report released by the (UK) Joint Committee on Human Rights, on the definition of ‘public authority’ for the purposes of human rights law. A Bill had been introduced that would clarify the definition, and overturn the Cheshire decision (more on all this complete with links at the original post).

The Bill began its second reading on Friday 15th, but the elephant in the room was an upcoming House of Lords case. The Government was relatively sceptical about the Bill, arguing that it was best to wait and see what the Lords said. And now, we know what they said. On a split of three to two, they have decided, in short, that the providers of contracted-out services will not be subject to the Human Rights Act as public authorities. Cheshire stands. So I assume that when the Bill returns to the House later this month, everyone will be in favour, no?

As it happens, the paragraph below represents my view of the matter (or alternatively, what the position should be):

When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace. It is, in my opinion, this case. (Lord Bingham, in dissent)

Update 1: Eoin has written about how this week is Say No To Ageism Week, and links to various bits of news and information related to the topic. Obviously, a significant feature of the above case is its impact on those persons who are in the position of relying upon the State for nursing home and post-retirement care - so seeing it in the context of work for older people (he is too modest to mention it, but Dr. O’Dell edited a book on Older People in Modern Ireland which contains various interesting essays), today’s decision is at odds with a trend towards a greater understanding of human rights and older people (although of course the House of Lords did not have that question before it).

Update 2: For some general information on the question of contracting out and human rights, try this conference paper (PDF) by Tony Prosser, or this persuasive argument made by Catherine Donnelly (now in TCD), where she concludes that:

It has been argued here that there are often good reasons for holding private contractors subject to human rights obligations. It has also been shown that this cannot be achieved effectively through contract, and that it would be preferable if s.6(3)(b) HRA were used to achieve this aim. Unfortunately, however, given the current s.6(3)(b) jurisprudence, it is difficult to envisage private contractors being considered to fall within the scope of s.6(3)(b). This leaves a huge lacuna in human rights protection. Going forward, it is to be hoped that, if applying Lord Nicholl’s criteria, the judiciary will not do so restrictively. It is also to be hoped that the judiciary will not place excessive emphasis on the presence of the contract–unlike Lord Woolf, in Leonard Cheshire, in finding that the contract severed the link to the statute. Contract is no more and no less than a mechanism for transferring a function from a governmental to a private actor. In this era of contracting-out and privatisation, it is important to keep this in mind. ([2005] Public Law 785, Leonard Cheshire Again and Beyond; Private Contractors, Contract and s. 6(3)(b) of the Human Rights Act- only available through Westlaw or in print AFAIK

I cannot imagine that Dr. Donnelly approves of today’s outcome. Furthermore, in a recent paper at the Constitution At 70 conference in TCD last weekend, she presented a paper (which will in time be published) dealing with the Irish situation; she concludes that the development of the ‘constitutional tort’ (a notable feature of Irish constitutional law) may be necessary in a climate of privatisation and contracting-out. Indeed, given the limited incorporation of the ECHR in Irish law (where public bodies are defined even more narrowly than in the UK), it may be the only way to provide for the enforcement of rights in the brave new (economic) world.