Lex Ferenda

Damien Mulley is wondering about the future of Digital Terrestrial Television (”Freeview” to British readers!) in Ireland. The comments (other than mine) are a useful peek into the debate, and in particular the question of universal service (both in terms of access to a basic level of media service, as well as the idea of public broadcasting).

A few contributors allude to the position of digital radio (DAB); the official service in Ireland is now up and running (well, the public trials are!), and I’ve been debating buying a DAB receiver in order to play. RTÉ has just launched its digital only services:

• 2XM (music)
• Gold (music)
• Junior (kids)
• 24-hour news (guess)

Hello World says Google’s new ‘public policy’ blog. They’ve been shadow-blogging for a while, and there’s a good few posts up for your reading and deconstruction…I liked this post on net neutrality. From this post and from others, they don’t appear to be putting anything out there that’s not already on the public record, but the presentation is clear and accessible, so even at that level it’s a worthy contribution to Internet policy debates.

Some numbers, to add to today’s stories.

Ireland: 166 members of the lower house of parliament: 15 Cabinet members, 20 ‘juniors’, for 4m people
Canada: 608 members, cabinet of 32, plus 22 juniors, for 33m
UK: 646: 23, 90, 60m (inevitably, there are lots of layers within the 90 sub-Cabinet people).
Aus: 150: 18, 28, 20m
India: 552: 31, 47, 1.1bn
Ontario: 103: 27, 33, 12m (basically every member of the governing party is a minister or parliamentary secretary for something!)
Scotland: 129: 18, 5m

Returning to the question of the Ministerial change-of-mind, I see that the Attorney General has apparently told the new Minister for the Environment (Gormley)that he can’t revisit the decision of his predecessor (Roche):

In a statement last night, however, Mr Gormley said that Mr Roche had been carrying out a quasi-judicial function, and without a change in material circumstances affecting the case, there was no basis for amending his predecessor’s decision.

I do think this is too easy of a get-out clause. First of all, is the NRA really going to seek judicial review of the Minister’s decision? (Under Section 41 of the Roads Act 1993, the Minister can issue directions to the Authority on any matter). But that’s just a cheeky point, so let’s move on.

With all due respect to the newly-appointed Attorney General (who must have had a great first day in office), and not having seen his full legal advice (us mere mortals only get it filtered through press statements from the Minister), my own knowledge of the law in the area tells me that it is not so clear. For starters, it is a well-understood principle of law that in practice, there are few absolute powers - where ‘discretion’ is stated, it is constrained. East Donegal Co-Operative v AG provides the classic statement.

Therefore, whatever the position, a Minister is not normally free as a bird in the sky - and to put a message about in the media that nothing can be done as a result of legal constraints is a little disingenuous.

The cases dealing with reversal-of-opinion are few and far between, and none are directly on point. For example, in Farrell v AG [1998] 1 IR 203, the decision of the Attorney General himself to direct the coroner (Farrell) to carry out a fresh inquest was quashed; there was not “a scintilla of evidence … for the complete change of mind”. (On an aside and just for fun, the AG received representations from then-Ministers of State Tom Kitt and Eithne Fitzgerald in favour of a new inquest). However, not only does this case not prove that a decision once made cannot be changed (it requires evidence, for sure), it has also been criticised by (for example) Gerard Hogan and David Gwynn Morgan in Administrative Law in Ireland (”a harsh conclusion indeed”), where they argue that the ability of a decision-maker to change his or her mind is a mark of open-mindedness, not irrationality, and that the decision in Farrell misapplies the familiar criteria for unreasonableness from O’Keeffe v An Bord Pleanála. (For the record, I am a critic of O’Keeffe, but I’ll run with it for now).

There is a more recent case on the table - Eviston v DPP [2002] IESC 62, where the fact that the DPP overruled a previous decision not to prosecute was challenged.

From the headnote:

(5) The trial judge was wrong in holding that the decision was so irrational as to require its being set aside. That was not a conclusion which could have been reached as a matter of law. The respondent [DPP], as a matter of law, was entitled to reverse a decision already arrived at not to prosecute, even in the absence of new evidence or different factors, where he was of the view that his original decision was erroneous.

(8) It was open to the respondent to review his earlier decision and to arrive at a different conclusion, even in the absence of any new evidence or any change of circumstances, other than the intervention of the family of the deceased. The distinguishing feature of the case was the communication by the respondent of a decision not to prosecute to the person concerned, followed by a reversal of that decision without any change of circumstance or any new evidence having come to light. The decision of the respondent was prima facie reviewable by the High Court on the ground that fair procedures had not been observed.

Confusing, indeed, and made worse by the fact that although it looks like the DPP is about to ‘win’, the final result is that the DPP ‘loses’ due to the procedures followed in this particular case.

I was also interested to read a decision of the English courts in a controversial case, R v Health Secretary ex parte US Tobacco [1992] 1 QB 353 where a factory was set up to manufacture ‘oral snuff’ based on some assurances from the Department of Health, who subsequently banned its sale!

If the Secretary of State concluded on rational grounds that a policy change was required and in the public interest, his discretion could not be fettered by moral obligations to (the company) deriving from his earlier favourable treatment of them. It would be absurd to suggest that some moral commitment to a single company should prevail over the public interest. (Lord Justice Taylor, p 369)

So in conclusion, the Minister for the Environment may well be (sort of) correct in saying that he will not be able to overturn his predecessor’s decision - but he is not prevented from reviewing it or affirmatively blocked from changing it.

At best, the law is muddled, and even if there was a challenge, the State has a very good record of defending Ministerial decisions under administrative law. In particular, I would argue that in a challenge for unreasonableness, such a case would be at the ‘deference’ end of the spectrum - i.e. it is not a case where the human rights of an accused person, for example, are under threat. (This is the sub-Wednesbury v super-Wednesbury idea that my tutorial students from last year will be familiar with!) Therefore, it appears to me (again only on the strength of the reports) that the AG may be taking an extremely cautious position - and I wonder whether this caution (and respect for strong anti-executive approaches to administrative and constitutional law) will be adopted by all Ministers, or is it a special one for this particular, politically controversial issue?

As a parting shot, Hogan and Morgan also note that in Minister for Agriculture v Gallagher [1941] IR 278, where the High Court (back in the 1940s) found that the Minister did not have the power to revoke a certificate that had been issued, was decided in ignorance of the provisions of the then-Interpretation Act (1937), which contains similar provisions to the current Act. So we’re following a good tradition here, eh?

So, as promised, my thoughts on Andrew Keen’s The Cult of the Amateur. I picked it up on Monday but didn’t get around to reading it until the end of the week. And it is a fun read - a polemic, without a huge amount of data, and the footnotes are virtually all newspaper/magazine articles. (I should also pay a little tribute to UK publishers Nicholas Brealey, as the paperback is a lovely production, in terms of cover, layout and typeface - perhaps they are trying to prove a point about book culture!)

Instead of trying to spin it all into a paragraph, here are my likes and dislikes (which may correlate with ‘bits I agree with’ and ‘bits that made me throw the book at the (non-existent) cat’). Better reviews are available (Toronto Star, Chicago Tribune), and Lessig has deconstructed the book (although I avoided rereading Lessig’s wiki in order to write my own notes without cribbing!)

Likes (Keen On These)

• Keen comes out with a strong defence of journalists and journalism, and the professionalism of many writers and broadcasters. So it’s not just amateur-bashing - there is a positive side too! (It was useful to read these sections with Tony Blair’s recent speech in mind, though).
• Surprisingly, there is strong criticism of the role played by corporations and PR agencies in manipulating ‘user-created’ systems; he cites Wal-Mart (twice), Exxon and alcohol advertising as some of the worst offenders. This is, in my view, an overlooked point in the current state of Web/tech analysis; another day, we can speculate on the reasons for the reluctance. (These sections sit well with the arguments made in Heath and Potter’s The Rebel Sell) A related topic that is touched on is the manipulation of sites like Digg (where you can buy your way to the top) and even the silliness of Google-bombing.
• A good overview of the use of the Internet by conspiracy nuts (and the high ranks reached - e.g. Loose Change, a video in the spirit of an entire well of green ink, is the ‘most viewed’ on Google Video despite having less connection with reality than any dreams of Wicklow winning the All-Ireland Football Championship do). The couple of paragraphs on ’sock puppets’ and the manipulation/disruption of open systems is interesting too, and although he doesn’t go into it, of personal interest to me through past involvement in Indymedia.
• There’s a lovely tribute to the original Tower Records and the role of the knowledgable sales assistant in music or book stores. Unfortunately, it’s undermined by a quick leap to a rehash of the IFPI line on music downloads (and what’s that got to do with ‘Today’s Internet’, anyway - wasn’t Napster years ago?)
• I appreciated the attention paid to the role of search engines, data controllers and others; Google comes in for predictable criticism (and remember that the book was written before the current upping of the ante.
• The final chapter, touching on things like Citizendium and the arguments against DRM, is quite positive (until it goes off the rails with porno-fears) and reminds us that Keen is in fact a modern techie, and not just a curmudgeon!
• The Cult of the Amateur is a thought-provoking book - I wouldn’t be turning to it as evidence of anything other than the author’s views and concerns, but it is also useful as a starting-point for further discussion.

And inevitably, the dislikes (Not So Keen On These)

• When I previewed the book, I said: 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. And of course, there’s not. In fact, it’s much worse: the line “Every free listing on Craigslist means one less paid listing in a local newspaper” is manifestly incapable of being substantiated - and he uses it twice! I appreciate the point being made, but there’s no point in saying something so blatantly false (prove it yourself by listing something on Craigslist that you would never have put in a local paper!), and it undermines the intellectual force of what could be a useful argument.
• This might sound silly, but Keen believes Kevin Kelly too easily. Kelly, the former editor of Wired, is the author of the landmark Scan This Book! article in the NYT Magazine (May 2006). It is one of the most interesting things I read last year. However, in criticising it, Keen is too quick to assume that Kelly’s vision is plausible - he falls over himself to say how terrible a future it portrays, without seriously questioning how likely the scenarios (or indeed the conclusions) are.
• There’s a lot of unfair links drawn between ‘remix culture’, academic plagiarism and illegal downloading. All important topics, but you can’t correlate them simply by putting them on the same page. It doesn’t work that way. Not on a blog, and not on a book either.
• There’s a heart-rendering portrayal of a young life destroyed by Internet gambling. Not sure how this differs from any other portrayal of addiction and mental health, though? Ditto for the discussion of virtual sexual misbehaviour and Second Life - someone needs to read up on their Mr Bungle!
• In the context of copyright and remixing: “I can scarely conceive of Johann Sebastian Bach releasing a raw version of his Brandenburg concertos to be remixed or mashed up by his public. Or Mozart letting his listeners rewrite his operas and concertos“. Oh God. Where to start? How about the fact that copyright law didn’t exist when Bach wrote the Brandenburgs. Or the fact that Bach remixing is an awful lot of fun (try Walter/Wendy Carlos), and certainly predates the Internet. And Mozart operas are translated, rewritten, reinterpreted all the time. And what is a ‘raw version’, Andrew? You might recall that recordings didn’t exist at the time, so the only way to release music was by sheet music. And, um, isn’t that a raw version?????? (I would add that his parallel between the Barenaked Ladies allowing fans to remix and surgeons being replaced by amateurs is a little hyperbolic - much as I love the BNL, they are not normally responsible for life-or-death situations.
• Keen goes off on a passionate rant about how COPA shouldn’t have been struck down (it was the ACLU’s fault) and the evils of Internet pornography and how it is corrupting our children. Well argued (even if I disagree), but it seems out of context with the rest of the book, and the anti-speech argument is a little too gung ho for someone who wants to save culture from the masses and gets excited over the role of the free press.

One interesting thing that Google Reader gives you is a table of the posts-per-day from the feeds you subscribe. Here’s mine from the last month (as far down as .5 per day). How does Peter Black get the time? He is miles in front, and of the others in the top ten, many are aggregators or have multiple authors. (Lex Ferenda is in a comfortable mid-table position at 2.1 per day).

(Yes I know it’s quality not quantity. This is just a bit of fun).

1. Freedom To Differ 8.0
2. The Caucus 5.3
3. Guardian Unlimited: Arts blog - books 4.6
4. Slashdot: Your Rights Online 4.6
5. Memex 1.1 4.2
6. Guardian Unlimited: Technology blog 4.0
7. Greenslade 3.9
8. Damien Mulley 2.8
9. Too many topics, too little time. 2.8
10. …My heart’s in Accra 2.6
Slaw 2.6
Quillblog 2.5
CRITICAL MASS 2.4
Michael Geist’s Blog 2.3
The Chronicle: Daily News Blog - article 2.0
Blogzilla 1.6
Michele Neylon :: Pensieri 1.3
The Globe and Mail - Globe on Baseball 1.2
WROTE 1.2
Tom Raftery’s I.T. views 1.2
michaelzimmer.org 1.0
Toronto Blue Jays News 0.9
Peace, order and good government, eh? 0.8
cearta.ie 0.8
The Court 0.7
TechnoLlama 0.7
GUBU 0.7
twitchgamer.net 0.7
CityofLadies 0.6
Arse End Of Ireland 0.6
if:book 0.6
Rachel in Toronto 0.6
Joris van Hoboken 0.5
Unit Structures 0.5
Maman Poulet 0.5
Susan Crawford blog 0.5
Holy Shmoly! 0.5
Citizen Media Law Project - 0.5
Eoin Purcell’s Blog 0.5

Dear Paul Birch (and anyone else who has ideas),

I have been reading this page (boingboinged to my attention today).

The page is part of Andrew Dubber’s blog, hosted and paid for privately; Dubber, though, also lectures at the University of Central England.

You, a manager of a record label called Revolver Records and IFPI and BPI board member, say: “Looking at your site I do think allowing indiscriminate criticism of the RIAA is inappropriate for a Government funded institution”; “You might argue that your professional blog is your opinion alone, however you are interwoven into the views and policy of the University of Central England” and “It expresses opinion, it’s not factual. If you persist then I shall make a formal complaint to the University.”

My blog, which you’re reading right now, contains Strong Opinions. Lots of them. I am employed by Trinity College Dublin as a research assistant (working on a separate topic to my thesis). I write this blog in my spare time and I pay for the hosting myself.

However, you seem to believe that employment by a university makes me ‘interwoven’, whatever that means. Therefore, for you, and for everyone else who has such a daft view of a university responsibility for its employees (even aside from academic freedom, and not to mention freedom of expression), you can send your complaints about the contents of this blog to the Staff Office, House 4, Trinity College, Dublin 2. Telephone: +353 1 896 1678 / Email: staff.office@tcd.ie . I’ll even supply my personnel number on request.

Off you go now. Mind the buses.

I do intend to do something more detailed (and thoughtful, perhaps?) on elements of the new programme for government here in Ireland, but this deserves a separate mention:

Require all mobile phones to be registered with name, address and proof of identity in order to stop drug-pushers using untraceable, unregistered phones.

1. Registration won’t stop drug-pushers communicating in an untraceable fashion.
2. Unregistered phones are far from untraceable. Duh.
3. What is the rational connection between “registration of phones” and “drug pushing”? I have a feeling that the number of unregistered users is much higher than the number of drug pushers?
4. Proof of identity? Why? I don’t need to give proof of identity when I put a letter in the postbox. I can understand the necessity when dealing with postpaid bills etc (if I’m going to sign up to a rental deal, it’s reasonable for the company to check that I am who I am) - but this would be a big leap.

Those who know me know that I take delight in slagging off the most extreme of privacy-protectors as Chicken Littles, but the simple factual presentation of this (registration and identity checks will stop the pushers), as well as its location in a section on “DRUGS” in a chapter on “Justice” is unfortunate, to say the least. Sure, make a case for mandatory registration, but for God’s sake make it under a heading like “communications” or (even) “security”. Cause, I mean, we’re all on board in the war against drugs, right?

(Speakeasy is one of the brand names used for a pre-paid, registration-optional service by a mobile phone company here)

Directions issued under s 14A of the National Monuments Act can be withdrawn or replaced. (Further discussion on possible constraints here)

This is how I finish this post; you’ll have to read the lot to see how I get there!

Discussion of the decision by outgoing Minister Dick Roche to (effectively) approve the M3 project through the national monument at Tara raises interesting questions of Ministerial power and the force of law. While leaving it to others to discuss the merits and demerits of the Tara and M3 issues, it’s a good time to walk through the legal issues concerned. This post is written with the proviso that I haven’t seen the order signed by Roche; it didn’t appear in today’s Iris Oifigiúil, nor is it on the Department of Environment’s website, and:

“The order was signed on Tuesday but it was decided not to issue a press release at that point because there was so much else going on,” a spokesman for the department said last night.

I don’t believe that for a second. Anyway. Former Minister Dick Roche is not saying that his successor, John Gormley, is prevented from changing his order; on the other hand, Gormley said (on de rea-djo) that “I can’t really do anything about my predecessor’s decisions”. The order/decision relates to the preservation of a national monument discovered during construction.

This has nothing to do with non-national roads being transferred from Environment to Transport (a separate issue that came out of the Cabinet reshuffle), nor does it relate to the advice given by the National Museum (there’s a statutory obligation to consult, but it’s not relevant to the question of overturning Roche’s order).

It has everything to do with the following.

Interpretation Act 2005

22.—(1) A power conferred by an enactment may be exercised from time to time as occasion requires.
(2) A power conferred by an enactment on the holder of an office as that holder shall be deemed to be conferred on, and may accordingly be exercised by, the holder for the time being of that office.
(3) A power conferred by an enactment to make a statutory instrument shall be read as including a power, exercisable in the like manner and subject to the like consent and conditions (if any), to repeal or amend a statutory instrument made under that power and (where required) to make another statutory instrument in place of the one so repealed.

And here’s the provision dealing with the decision itself. National Monuments (Amendment) Act 2004, s 5 inserted the following:

14A (4)(d) the Minister may, at his discretion, issue directions to the road authority concerned for the doing to such monument of one or more of the following matters:
(i) preserve it;
(ii) renovate or restore it;
(iii) excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to it;
(iv) make a record of it;
(v) demolish or remove it wholly or in part or to disfigure, deface, alter, or in any manner injure or interfere with it,
and the road authority shall, except where section 14B(8)(a)(iii) of this Act applies, comply with such directions.

So the question remaining is whether the ‘directions’ stated in 14A are ’statutory instruments’ as mentioned in the Act? The answer is provided in s 2 of the Interpretation Act:

“statutory instrument” means an order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act and references, in relation to a statutory instrument, to “made” or to “made under” include references to made, issued, granted or otherwise created by or under such instrument.

Break that down and the answer is very clear. The directions issued under s 14A of the National Monuments Act can be withdrawn or replaced.

More: RTÉ

Via The Court, the great blog at my old stomping ground of Osgoode Hall comes this fun page on “Which Canadian Supreme Court Justice Are You?” Apparently I’m Justice Claire L’Heureux-Dubé.

Would love to do one of these for the Irish court, maybe for next year’s constitutional law students. This test (which is a bit of fun rather than a weighty legal analysis) just picked out some of the key, divisive opinions from the last few years’ worth of SCC decisions. Please use the comments button to nominate cases that would be good indicators of difference in approach, and if time permits over the summer, I’ll try and pull it together as a test…. (and that is a promise).