You will have noticed the black banner across the top of our site this week.
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, 22nd 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 , as amended by Corrigendum, 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 29th 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  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.