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Safe Harbour: Irresistible force meets an immovable object

Aircraft Carrier by Matt Morgan

It’s an old Internet joke, but a good one. It takes the form of a transcript of radio communications at sea. The identity of the two sides shifts depending on who’s telling the story- UK and Ireland, Spain and Portugal etc.

What stays the same is that a huge military ship from a powerful imperial nation is told by a little nation’s vessel to change course to prevent a collision.

It refuses and demands the other party change course. The little nation refuses and repeats its demand.
This goes on, with the bluster, threats, refusals from the mega-ship escalating throughout. Finally, the empire’s ship simply says it will not change course.

-“We are the most powerful ship that has ever sailed these waves and we will not change course!”

-“We are a lighthouse. Your call.”

This week, the US ship of state seems to have gradually realised it has been playing chicken with the EU lighthouse over Safe Harbour.

Today’s Wall Street Journal says ;

In the past week, the U.S. has provided greater clarity in a draft letter about the limits and safeguards regarding access by national-security services to Europeans’ data, according to people familiar with the talks.

The problem with this as a solution, as anyone who was at the hearing of the Schrems case in the CJEU could attest, is that the EU Commission was strongly questioned by the court about the adequacy of the previous Safe Harbour finding. And that finding was also, in the end, based on a series of letters of reassurance from the US.

The Commission knows that what will satisfy the needs of the CJEU’s ruling is not ‘clarification’ of the US National Security regime. What will be needed for the EU Commission to return to their position that the US provides ‘adequate’ protections for European citizens data is an actual change in US law.

As matters stand, it doesn’t look like these talks can reach an agreement before the deadline of February imposed by Europe’s Data Protection Authorities.

Neither the ship nor the lighthouse want to see what happens when they collide. But, in the end, only one of them can do something to avoid it.

Privacy, “On the usual terms”

A small boy investigating poses little risk to privacy

When a Plaintiff makes a claim for personal injury it has become commonplace for representatives of the insurance industry to demand, and expect, access to the private medical records of the Plaintiff without limiting their requests in terms of relevance or time. In some cases they simply include a “helpful” authorisation form for the Plaintiff to sign so that they can access all records directly from every medical attendant the Plaintiff has ever attended. If the Plaintiff complies with this request their records become the subject of scrutiny by legal, and insurance personnel before ever reaching the desk of a medical professional acting for the Defendant.

In contrast, the practice set out by the Law Society in relation to Medical examination in personal injury cases allows for the medical professional acting for the Plaintiff and the Defendant to liaise with each other directly regarding the patient’s medical treatment or history. The Courts are now endorsing this method and disallowing expansive discovery requests from Defendants with costs being awarded to the Plaintiff. This is a welcome development in a society where the privacy of a person’s records is constantly being undermined.

HSE releases handwritten notes of meetings with DPC re eHealth

Handwritten notes of HSE DPC meeting

I have written before about the HSE’s claim that no notes of meetings about the eHealth Individual Health Identifier project with the Data Protection Commissioner’s office existed.

As a result of an internal review, the Department has now reversed this position and issued the below sets of (partially) handwritten notes.

Outcome of FOI Internal Review HSE and IHI

Leviathan and greasy tills

Credit; tcd.ie

In May 2011, Queen Elizabeth II, the Sovereign of the United Kingdom, was driven past our office.

We saw her.

Like other citizens of Dublin, we waved respectfully. We understand David Cameron, the UK prime minister, is also respectful of her. Nonetheless, she has to watch her step with him; he can politely direct her on important matters. Albeit he must be polite, he is not amenable to being curbed by her because she lacks the institutional capacity to direct him, even if she wished to do so.

In Ireland it is at once the same, but different. Every day, so to speak, it might be said that the Irish Sovereign drives past our office, because a portion of the People of Ireland drives past our office.

In Ireland, the people are the Sovereign. Well, that’s the theory. It’s a good theory, but it’s a bit metaphysical. Consequently, the Irish Sovereign does not drive past our office and cannot do so. Furthermore, the Irish prime minister does not have to be polite to the Sovereign. He is polite, in the sense that he avoids uttering insults but there is an established tradition in the political class in Ireland to slight the Sovereign.

Because the Irish Sovereign is “metaphysical”, the representatives of the People are the means for the People to manifest themselves or exert themselves. The representatives are the collective we call the Oireachtas.

However, for institutional reasons, they are peculiarly inept at that job of representation. They can initiate draft legislation, but they do not do it often. This is unfortunate because legislating is the purpose of the Oireachtas. Instead, other elements of the State initiate and draft the legislation. Then those elements go through a pretence of submitting the Bill to the Oireachtas for debate. But there is no debate. It is blocked and/or curtailed. This process is called “the guillotine”. The head that is cut off is the head of the People.

This process or experience has been the subject of academic discussion for many years. There is evidence that it is about to escape from the academy; political canvassers are reporting a trend from the constituency doorsteps. When learning of a candidate who is not in a political party, the People are responding positively. The People may regret this, but so too will the political class; as it should.

That class is not a pushover; it has taken defensive positions. It has begun a process to empty the word “legislate” of content, by opposing it to the word “administer”. Henceforth, the political class will not need legislation, it will simply administer the Administrative State.

“I meant only the best”

“Humpty Dumpty” by Tenniel

Some things endure. Lewis Carroll could write in 1872:

“I don’t know what you mean by ‘glory,’ ” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”

“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so
many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

Currently we see something similar in Reid v Industrial Development Agency (Ireland) Ltd. [3013] IEHC.

The IDA wanted to buy a farm and historic house beside the Intel factory in Maynooth. The farmer did not wish to sell. The IDA decided to make him sell.

In the High Court the judge could see nothing wrong with this plan. (This is not unreasonable; the right to private property cannot be an absolute right).

One of the issues in the case was an allegation of bias on the part of the Defendant IDA. The High court was not receptive to this or the Plaintiff’s other objections;

It seems to me that, weighing these two cases in the balance, this Court is driven tothe conclusion that the national interest must outweigh the individual. The need, never greater, to increase employment and generate business demands that many sacrifices be made. Here the burden falls heavily on one party and the Court must and does have sympathy with him. However, the examination of the proportionality of the compulsory acquisition of these lands must conclude that it is proportionate to the objective sought taking into account the applicant’s undoubted property rights and his rights under Article 8 of the Convention.

The Supreme Court thought differently to the High court as seen HERE. On the issue of bias it found:

72. The test for this class of objection is now well established: in short, it is the reasonable suspicion or the reasonable apprehension test: whilst the latter description has been preferred in Bula Limited v. Tara Mines Limited (No.6) [2004] I.R. 412 (“Bula (No.6)”), both terms continue to be used interchangeably. No longer is there any real suggestion that the once alternative approach, namely a real likelihood of bias, should be considered. The test now to be applied is centrally rooted on the necessity of establishing and maintaining the confidence of the public in the integrity of public administration generally. Thus, the prism through which the issue must be considered is that of a reasonable observer’s perception of what happened: therefore as has been said on numerous occasions what the parties, the witnesses or even us judges think, is not decisive. It is what the reasonable person’s view is, albeit a person well informed of the essential background and particular circumstances, of the individual case.

Shut up!

Microphone

The Broadcasting Act 2009 contains an impractical idea; that nothing that causes “offence” should be broadcast. Section 39 reads:

“Every broadcaster shall
ensure that-

…anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster…”

It is impractical to limit public broadcasting to anodyne subject matter. A nation which gets anodyne broadcasting is unlikely to be healthy (socially, not to speak of mentally).

Peculiarly, the courts have had trouble understanding the Irish Constitution on the point. One judge felt that Article 40.3 (Personal Rights) was the source of the “right of free expression” as opposed to Article 40.6.1 (Freedom of Expression). He was of the view that Article 40.6.1 did not ground a right to convey information; that it related to
the expression of “opinion” as opposed to the communication of “fact”.

How would he have framed a defence of Galileo Galilei in 1633 if he had been called upon to act for him? (Galileo was of the strong opinion that it was a fact that the Earth moved about the Sun, and not the reverse).

That aside, nobody should be in a position to suppress “free speech” on the basis that it is offensive to them. That they are violent or extreme in their rejection of the communication is not, or should not be, a buttress to their claim of right to suppress free speech. Of those people, members of the political class, including the Executive, are least deserving of a hearing on the point. It is too dangerous to society to permit politicians, or anybody else, to silence the polity or any section of it.

European Arrest Warrant Act 2003: Procedures and Problems. “A Serious Trivial Problem”

In the EU, “extradition” is by means of the European Arrest Warrant (EAW). Any member state may issue an EAW and request its execution in any other member state. Very serious problems can arise in the system. The EAW system is professedly based on the high regard that the national judiciaries have for each other. In fact, they do not have such a high regard for each other. Notwithstanding, like characters in a Samuel Beckett play, they “go on” with the EAW process, being rescued on occasions by indefatigable work of defence lawyers across the EU.

Fair Trials International has listed the problems HERE

Legal practitioners in Ireland will have encountered the judicial system of Poland, for instance, and have had practical experience of the disproportionate lengths to which that system follows some of its citizens. (Trivial offences can be resurrected years after the events on which they are allegedly based).

Most significantly, the inspiration of the EAW is political, not judicial but the execution is vested in the judiciary.

The Fair Trials International criticisms are as follows:

  • European Arrest Warrants have been issued many years after the alleged offence was committed.
  • Once warrants have been issued there is no effective way of removing them, even after extradition has been refused.
  • They have been used to send people to another EU member state to serve a prison sentence resulting from an unfair trial.
  • Warrants have been used to force a person to face trial when the charges are based on evidence obtained by police brutality.
  • Sometimes people surrendered under an Arrest Warrant have to spend months or even years in detention before they can appear in court to establish their innocence

There is one particular feature of the EAW that helps to propel it forward; the cost of executing an EAW falls on the receiving member state, not the requesting member state. So, think of a national service industry, generating good employment figures, whose cost is borne by another national economy; that’s the EAW.

Domestic courts in EU member states are aware of these problems. Their solution to date has been to say the problem must be corrected elsewhere. The “elsewhere”, presumably, is the European Commission or the Council of Ministers or the European Parliament. There is no sign that these institutions will even recognize the problem, let alone correct it.

The problem is very significant. At a minimum, it is evidence of an absence of any real attempt to establish ethical and practical standards for a unified legal profession in the EU.

Back to School

Photo credit; Creative Commons

Donald Trump is living proof that the relevant issue in the US presidential election race is education.
His slogan “Make America Great” is a (double) solecism. It is great because of the Constitution of the United States.

Article VI of the Constitution of the United States of America (the correct name of the country) provides;

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Ideas and “aul pencils”

“The life of the law has not been logic; it has been experience.” So claimed Oliver Wendell Holmes.

In fact this statement contains its own contradiction; it is an idea, and the life of the law is in ideas. It is impossible to understand the world, or even a part of it, without having an idea. An idea is an abstract concept.

Take any word as an example; now put it in a sentence. Invariably, the meaning of the word will grow, or expand, when placed in the sentence. The sentence has its own meaning, of which the meaning of the word is a part.

Bertie Ahern once had an idea. He expressed it when he scoffed at “aul pencils”. His idea was to have the electorate vote by electronic machines. (The idea was not his, but he embraced it).

Someone else had a contrary idea; that no electronic voting machine was a reliable means of recording votes. This contrary idea was far more abstract than Bertie’s idea, which was constrained by the application of Bertie’s limited experience of computers to what he no doubt saw as a mundane element of government; voting him back into office.

There are many ideas in our constitution. One of them is clearly expressed in Article 15.2. It vests the sole and exclusive law-making power of the state in the Oireachtas.

This idea, as it seems, is so impractical or radical that it was necessary to “explain” it. That happened in Cityview Press v Anco [1980] IR 381.

Leaving aside what was decided in Cityview Press, the reality of law-making in Ireland is that the government (“the Executive”) decides what the law should be. The Executive is
the dominant element in the Irish state. Its members are members of the Oireachtas, but they are a very small part of it.

In its turn, the Executive relies on the civil service to implement its policies. Very often it relies on the civil service for the ideas to underpin the law. The final form of Bertie Ahern’s idea to have the electorate vote by electronic machines came from a civil servant.

So, the law providing for electronic voting did not emerge from the Oireachtas; it emerged from the place that all Irish law comes from; the Executive. (There are very significant exceptions; they will be looked at in later posts.)

There are two final points to note; every law and every proposal for a law is the expression of an idea. Anyone can have an idea superior to the idea expressed in those laws or proposals and the idea that no electronic voting machine was a reliable means of recording votes was superior to Bertie Ahern’s contempt for pencils. If the law is wrong, it will fall.

Lawful War

France has done the world a favour by going to the United Nations Security Council on Friday the 20th November 2015.

That it got sanction for military action against ISIS (DAESH) is a sign of moving tectonic plates by the standards of the UN.

At the moment it is not important that France’s military response is in fact incompetent or ineffective from a military point of view. (That’s a common failing in military affairs).

It is important because France chose to seek legal authority for its actions and now has it. It is now more difficult for other states to try to pretend that the United Nations is irrelevant. Admittedly, there has been an impasse in the Security Council for many years, but that was a diplomatic not a legal issue.

The real solution to France’s terrorist problem lies in the United Nations at the diplomatic level. France can choke off ISIS funding. That funding is travelling through, and emanating from, member states of the UN. The UN has applied sanctions in such cases, even at the level of named persons. (That system has its problems, but that’s for another day).

France should forthwith seek and get sanctions against those UN members facilitating ISIS. The member states of the European Union should support France in these matters, subject to full and accurate evidence being produced by France to justify its requests.