You may also have noticed the sudden flurry of media appearances and debates on radio around the issue of Minister of State Sean Sherlock’s plan to introduce a law to allow the music labels (and other copyright holders) to seek injunctions forcing Irish ISPs to block access to sites they don’t like.

“I will introduce this imminently, by the end of January.”
- Minister Sherlock, Sunday Business Post, 22^nd Jan 2012

This SOPA Ireland law, as it is is called, is similar to the proposals defeated in the US only a week ago after a mass uprising of grassroots protest- first from Reddit, and then joined by the biggest names on the net- Google, Wikipedia and so on.

However, unlike that US law, people here can’t even expect to have this blocking law debated in their legislature. The Minister has said that he intends to deal with the matter by way of a Ministerial Order. Nor has he published the text of the law. The first we, the people of Ireland, will know about the text of this law will be when it is signed and brought into force.

This is grossly wrong. This is why we were so enthusiastic when Sabrina Dent suggested that we launch a petition website to let other people (a) know what was going to happen and (b) tell the Ministers responsible that they object to the proposal.

That was long, long ago now. Monday morning to be exact. Since then, 30,000 people have emailed the Minister for State Sean Sherlock and Minister Richard Bruton at the Department of Jobs, Enterprise and Innovation to tell them they DO NOT WANT.

I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:

- Opening paragraph of the leaked Draft Text of the Ministerial Order

Minister Sherlock has been traveling around the airwaves acting as a recruitment sergeant for the petition by providing worrisome, self contradictory, “reassurances” about what he intends to do.

All in all, so far, our Public Interest Campaign site has facilitated a very successful piece of civic action.

But more will need to be done. Minister Sherlock has said that he intends that Richard Bruton will bring the Ministerial Order to Cabinet.

This is, to put it mildly, unusual.

A Ministerial Order (otherwise known as a Statutory Instrument) is only intended to bring in secondary legislation -ie, tidying up the administrative side of policies and laws already passed through the Oireachtas after proper debate.

On 29^th July 2011, the Minister was put on notice of this difficulty when Digital Rights Ireland (our client) wrote to his Department;

It is significant that Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be “democratically legitimised” (at para. 113).

It would be undesirable in any event for a matter dealing with fundamental rights to be disposed of by way of secondary legislation. It is all the more undesirable in this case, however, given the vague and open-ended nature of the powers involved. This is, in effect, a case of delegation heaped on delegation – rather than rules governing blocking and other remedies being made by primary legislation, or even secondary legislation, they are instead effectively being made by delegation to the judiciary.

The new plan to bring the matter to cabinet is an admission of the truth of that argument. But a discussion behind closed doors amongst a handful of Ministers is not good enough.

If a matter is so significant, contentious and complicated that it must be debated by Cabinet, by definition, it is not a matter which is suitable to be brought in by Ministerial Order without public debate and without careful scrutiny of the proposed text.

Ministers Bruton and Sherlock must now bring a Bill before the Oireachtas and let the sunlight in. This issue is too important to be left to the murk of backroom deals.

For instance, Mrs. Quinn contested her liability to repay €3,000,000 to Anglo Irish Bank on the grounds that she did not know that she was borrowing the money and, in fact, never received it.

(I hope this characterisation of her position is correct. If the High Court decided to enter the modern world, it would assign to junior barristers the job of posting pleadings and affidavits, opened in court, on the internet. That would achieve two ends; to conduct its business in public and give employment to junior barristers.)

The court, reportedly, accepted the truth of her contentions but termed her negligent. By that the court meant, negligent in her own interest.

This was wise; neither Anglo Irish Bank nor the court was in a position to conclusively establish Mrs. Quinn’s state of mind in 2006 when she signed the loan documentation.

It was also unnecessary. The burden of proof on Anglo Irish Bank was on the balance of probability. Undoubtedly its loan documentation unequivocally showed that Mrs. Quinn signed up to a loan transaction. (We can know this because of what we know about lawyers; her lawyers would have pointed out any deficiencies. From reports, they did not, therefore there were none).

Consequently it was more probable that she knew what the documentation represented than not and should be held to its terms.

Of course she has a current exemplar in her view of the unreliability of her knowledge of the world. Bertie Ahern has attributed his blamelessness for Ireland’s financial disaster to the fact that nobody told him what was going on in the banks.

“If I had seen the banking crisis coming. Nobody advised me, no economist, all those people now writing books saying ‘I told you so’ – none of them.”

This presumes that we believe him. It also suggests that we can know things and that in the absence of that certain knowledge we are blameless if we are mistaken.

This writer remembers (he thinks) hearing of “culpable ignorance” , a Thomistic concept, at school.

This writer also knows, from experience, how easily people are misled by their mistaken certainties; about what they saw and whom they saw. Being correct in making an identification of persons is so fraught with error that courts must issue warnings about the unreliability of such evidence to juries where prosecutors rely on that evidence.

Notwithstanding we, all of us, can, in principle at least, be radically totally and serenely wrong, like the character in Iolanthe who

“Bound on that journey you find your attorney

Who started that morning from Devon.

He’s a bit undersized and you don’t feel surprised

When he tells you he’s only eleven”

neither Mrs. Quinn nor Bertie Ahern could plausibly sing those lines.

They each of them have lived full active lives in business and politics respectively and in the case of Bertie Ahern, he was the leader of the country, the leader of his party and memorialised by a predecessor as “… the most skilful, the most devious, the most cunning of them all”.

The singer in Iolanthe had an excuse; he was dreaming. Neither Mrs. Quinn nor Bertie Ahern can pass off their mess like that.

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.

When President Lincoln visited him in the field, McClellan kept him waiting outside his tent. In discussion later about this slight, Lincoln said he would gladly hold McClellan’s horse [its reins] if it would assist him [McClellan] in the military effort.

McClellan was the weaker of these men and subsequent events showed this; but so too did that slight.

The US civil war was a political struggle first. The Dred Scott case showed this. With that case, in effect, the US Supreme court opened the way for the extension of slavery into the new western territories. The decision undermined what was a political settlement between the slave-owning states and the non-slave-owning states.

It was an aggressive move by the secessionists.

Judges of superior courts need to understand things like this. Consequently they need to be able to decline to adjudicate on a political question and/or underpin a political arrangement, depending on the circumstances.

Ireland subscribes to a major political arrangement, as nominally expressed in the law of contract; people should be and will be held to their agreements.

With exceptions.

We now know that ideas cast in this form and applied to Dred Scott were deficient. Nobody working for Dred Scott asserted his right as a person to be free; they pleaded the law of the Northern States and Territories and the US Constitution to establish his right to be free.

The mode of thought in the law of contract analogous to an appeal to a human right to be free is to distinguish between the form and the substance of an agreement. This is what we do when we speak of “predatory lending”.

It is not a good thing, always, to borrow money. The form of the borrowing arrangement may be, in substance, a plan to take what property the borrower already has, from him/her.

Businesses in the financial industry are obliged to expressly aver that the “product” is suitable for the “customer”. This is an old idea and is part of the law on the sale of goods.

What if a loan is spectacularly unsuitable to the customer? Who, but the lender, in that transaction is best able to know this?

Consequently, financial claims arising in contract do not all deserve to be heard in summary manner in the High court; some should go to plenary hearing with a full examination of the context in which the agreement was concluded.

A Social Democrat will favour consumer protection; an individualist will not. To be radical rather than redundant, without explaining what you are radical about, is to be an anarchist and an anarchist thinks little about consumer rights. Even when you do explain what you are radical about you may reveal that, indeed, you are an anarchist.

The title of this post is a phrase from one of our opponents in a law suit. It was his gloss on interpretation of an Irish statute of 1952. We never knew, until he claimed it, that Ireland had a command economy in 1952 and still do not. (We are less certain about the economy of 2011).

These thoughts are prompted by the case of Noreside Construction Ltd. v Irish Ashphalt Ltd. [2011] IEHC

Here, the Plaintiff was constructing houses in Dublin on contract to the Local Authority. The Defendant supplied aggregate for use in the foundations. The Defendant failed to alert the Plaintiff that the aggregate contained pyrites. Pyrites are not suitable for house foundations; they cause upheaval and destroy the integrity of the construction.

The Defendant contended that its terms and conditions, as printed on its delivery dockets, were effective in excluding liability for consequential loss and limited any claims to the cost of replacing the aggregate itself.

The court found that the Defendant was wrong in thinking that its terms and conditions formed part of the contract; they did not. Furthermore, the contract contained an implied term of the merchantability of the product. (Student lawyers hear a lot about merchantability; practising lawyers less so).

To buy a house is the most significant purchase most people will make. It is the ultimate consumer purchase. That the consumer’s rights and remedies might in some way be constrained by the outcome of a “battle of the forms” between two commercial entities is not a rational ordering of social affairs. (It might require deployment of all the resources of both the Plaintiff and the Defendant in Noreside Construction Ltd. v Irish Ashphalt Ltd. to pay for the  presumed loss to the purchasers of the houses).

The plural of counsel is counsel. (See entry no. 3 HERE). The [non-immigrant] people of Ireland should have no difficulty with this word, having been long acquainted with Our Lady of Good Counsel but they do, because they are also long acquainted with the County Council or the City Council.

There is one other point to be made about counsel. It is the advice you get; it is also the term for the person who gives that advice, or represents you, in the context of a courtroom. To clarify this; it is common that the advice is referred to in lower case and the representative is referred to in title case (Counsel).

So, our learned friends are definitely losing their wigs, (or presenting us with trundling examples of stupidity, otherwise). One influential Irish barrister in the past derided the barrister’s wig as a prophylactic, i.e. a “forensic condom”, but derision is not effective against the Rules Committee of the Superior Courts. This is the body that ensures that Ireland has no provision for launching class actions; it ensures that citizens must have the character of a General U. S. Grant or an Erwin Rommel and the resources of a Denis O’Brien if they wish to vindicate their rights in the face of State power. (See Order 84 Rule 21 of the Rules of the Superior Courts).

A US lawyer, from Kentucky, he represented Dred Scott in Scott v Sandford [1857].

Dred Scott was a black slave, married to Harriet and each owned by Major Emerson of the US Army (in the case of Dred, since 1832). Major Emerson had consented to the marriage of Dred and Harriet and had taken them to Illinois and the Wisconsin Territory. In each of these places slavery was prohibited. In 1837 Major Emerson married Eliza Sanford. The Emersons and the Scotts moved in accordance with Major Emerson’s army assignments and the Scotts were in Missouri when Major Emerson died, his wife inheriting his estate, including Dred Scott.

Dred Scott offered to buy his freedom from Mrs. Emerson but she refused and in 1846 Dred Scott sued her, claiming he was entitled to his freedom. He ultimately lost in the Missouri Supreme Court, it finding that he should have made his claim while he was in the free territories of Illinois and the Wisconsin Territory.

Dred tried again, in 1853, in Federal court. The defendant was the then executor of Major Emerson’s estate, John Sanford. Ultimately, represented by Montgomery Blair, Dred Scott lost again in the US Supreme Court, (the court mis-spelling Sanford’s name as “Sandford”). The majority on the court denied that Dred Scott was a citizen of the US and therefore the US Supreme court lacked jurisdiction over his claims. It found that the applicable law was that of Missouri, in which Dred Scott was a slave.

The consequences of the decision were very far-reaching. There was an immediate financial upheaval; the possibility that the Southern states could expand slavery into the territories disrupted a political balance between the North and the South and led to the US Civil War.

During the war Montgomery Blair served in the Lincoln cabinet, retiring in 1864 as part of a deal to stall a Fremont candidacy for President, leaving  the way open for Lincoln to seek a second term. Prior to that, Blair advocated the freeing of black slaves to undermine the power of the secessionists, a course followed by Lincoln in due course.

Like many lawyers, Mr. Blair’s representation of his client, Dred Scott, was not for money but from conviction.

As for Eliza Sanford, she learned there are some offers you should not refuse, even if you can. (She had gone to live in Massachusetts before the Supreme court decision and slavery was not permitted there. Massachusetts was a Union state in the war.)

As an instance of this Giovanni Belzoni, an Italian strongman (literally), in 1815 procured a letter from the British consul in Naples to allow him to travel to Egypt where he explored many of the sights of Egypt and used explosives to break into the great pyramid where he wrote a message on the roof of one if its large chambers, still to be seen today.

This instance was instructive; Belzoni was a native of Padua, part of the Venetian Republic. Napoleon had destroyed the Republic and by 1815 the British dominated the Mediterranean and Egypt in particular, filling a vacuum after Napoleon defeated the Mameluke rulers of that country. Belzoni had lived in Britain for a period. So, he seemed an appropriate recipient of a letter of introduction from the ascendant power.

In modern times, refugees can get the equivalent of such a document from the United Nations Commissioner for refugees; by definition, their own state will not give them a passport.

So, what started as a handy or valuable thing to have on your travels has become an essential thing to have. The “friendly” state to which you travel will be anything but friendly if you do not have your passport.

In 1981 Philip Agee, a US citizen ran into some passport trouble; it was revoked by Alexander Haig the Secretary of State . At the time Agee was in West Germany. Agee, a former CIA agent, had engaged in a programme to publicly disclose the identities of the agents of the CIA around the world. Agee issued proceedings in a US federal court to restrain Haig in his actions. Agee won and won again on appeal. The case came on in the US Supreme court on further appeal where Haig won. (The Chief Justice, Burger, was a Nixon appointee.) The judgment recited the history of US passports; the history had commenced with the Passport Act of 1856 (a fateful and dismal year for the US).

Haig v Agee has had a significant effect in that it expanded the power of the Executive at the expense of the US Congress. In effect, the Supreme Court assigned powers to the Executive because the Congress had not expressly denied the power to the Executive. (A case, surely, from Agee’s point of view, of great unintended effects).

As for Agee, he promoted tourism to Cuba for US citizens, finally dying in 2008, just two years before Haig.

These fantasies are overt. We live with others that are covert. I have in mind the continued refusal of the Irish courts to make provision for class actions.

Currently, the courts will only admit of claims from single persons or, exceptionally, groups who have suffered the same damage in the same circumstances. These groups are, in effect, individual litigants who have made their claim in the same proceedings. They will know each other or their lawyer will know each of them in detail.

In effect, the Irish courts are imposing a narrow political and social vision of society on the Irish people. That vision admits as legitimate only the claims of the individual (usually a man). In fact we know very well that society functions through group action and that the groups are often very large.

This attitude by the Irish courts is not exceptional. The EU is toying, again, with the idea of permitting limited class actions in member states. See an earlier post on this HERE.

In the meantime, UK courts have, without significant difficulty, made provision for the bringing of class actions, We see the result of that in the capitulation by Royal Dutch Shell in a class action brought by Leigh Day (solicitors) on behalf of the population of Bodo, a town in Nigeria.

Will Ireland suffer the humiliation of Irish citizens bringing a class action in London for events which happened in Ireland?