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Why does my Conveyancing take so long?

The reply to the question is, to some degree found in a quip; how long is a piece of string? Another reply is found by looking at my solicitor’s reference bookshelf. The title of one book – “Contract and Conveyance” jumps to my eye. Making the contract precedes the conveyancing.

What has a contract got to do with, ultimately, the registration of land ownership? A lot, is the answer. For starters, a contract for the sale of land (and buildings or structures like them) is an exception in
the law of contract. Such a contract cannot be enforced unless it is in writing signed by the relevant person or his/her agent. You could buy and sell a jumbo jet without such a restriction.

So, what does the written contract look like? It could take almost any form, as long as it is in writing and says the necessary minimum of things. It could fit on a sticky note.

Would you be happy to sign a contract embodied on a sticky note? You would not, and neither would your solicitor be happy if you did so. Your solicitor would like to add quite a lot to the contract. Well, she would if she were qualified to do so. To reach that level of qualification requires many, many years of experience, more than the average solicitor will ever get.

Luckily, all the necessary years of experience have been culled from the past; they are found in the Law Society’s form of contract for the sale of land. That form of contract is revised from time to time to take
account of changing conditions. Sometimes, the conditions change before the next edition issues. That’s where your solicitor starts to earn her fee. She has to ensure that the contract as signed by you reflects such a change.

The Law Society contract expresses the basis for asking questions about the title of the vendor. Even a contract on a sticky note will lead to such questions, known as “requisitions”. However, the requisitions on the sticky note contract will be inadequate because most appropriate queries
will be precluded from being asked, or, if asked, the sticky note contract will not oblige the vendor to answer them. (It would be a good test of the skill and knowledge of a solicitor to see how many requisitions she could justify, in law, under a sticky note contract).

Identifying the basis for a requisition is important. If that cannot be done, the reply “declined”, may shut the issue down. Or, the vendor’s solicitor may have drafted the contract to allow such a reply to be validly given. Which is another way of saying that the purchaser’s solicitor should ensure, before the purchaser signs, that such a reply cannot be validly given under the terms of the contract.

Wow! Who are these solicitors?

Nobody special. They work in offices just down the road from where their clients live. Nevertheless, they have to pay attention to the ordinary mundane task of getting the clients from the agreement to sell and buy to the point where the property changes hands without a destructive expensive
row in between. To do that requires the solicitors to pay attention to the process. (A very expensive High court lawsuit, and Supreme court appeal, arose from a failure to appreciate the significance of “Vendor says no” when given in reply to a requisition). Excessive speed could damage the process. The process involves the exchange of documents between solicitors and the documents must
first be created. That takes a minimum amount of time. The process is intended to uncover problems, if they exist. If they exist it will take yet more time to remedy them (if they can be remedied).

As a rule of thumb, the process of completing the sale and purchase of a standard suburban house should be complete in six weeks from the signing of the contract by the purchaser. (Only when the process ends satisfactorily do we know what “a standard suburban house” is).

Safe Harbour Decision ruled invalid by CJEU

16340819563_2544706777_o.jpgMax Schrems took his case when the Irish Data Protection Commissioner refused to accept his complaint that Facebook was transferring his data to the US, where he did not believe it was being treated in accordance with EU data protection law.

The Commissioner rejected the complaint on the basis that it was “frivolous and vexatious” as they had no power to second-guess a EU commission decision that the Safe Harbour scheme between the EU and US provided ‘adequate’ protection.

Today, the Europe’s top court, the Court of Justice of the European Union (CJEU) has ruled that Decision invalid and, in a strong statement on the paramount need for Independent data protection authorities, is reported

“the Irish supervisory authority is required to examine Mr. Schrems’ complaint with all due diligence and, at the conclusion of its investigation, is to decide whether, pursuant to the [Data Protection] directive, transfer of the data of Facebook’s European subscribers to the United states should be suspended”

McGarr Solicitors represented Digital Rights Ireland who were a party to these proceedings in the Irish High Court and before the Court Justice of European Union. We argued at both court levels that the Commission’s Safe Harbour Decision should be assessed in the light of the Charter of Fundemental Rights. Today, the CJEU took the same position.

Judgment below

CJEU Judgment Schrems Case on Safe Harbour

After Bara: All your (Data)base are belong to us

“The Government has announced a database to…”

My heart now sinks when I see these words. IT solutionism has a mesmerising power over governments everywhere but seems to exercise particular power over the Irish State. It allows them to announce a crisp remedy for a (frequently mis-defined) problem. All they need do is spend public money and through the magic of computers and surveillance tech they can assert they can actually get rid of that problem.

However, a very significant decision this week from the Court of Justice of the European Union (the EU’s top court, whose decisions are binding on member states) may force a change in government behaviour.

Asked to rule on the legitimacy of the Romanian government’s laws allowing for citizens’ data to be shared by the government between institutions without the knowledge of the person whose data it is, the Court delivered an emphatic decision.

Articles 10, 11 and 13 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data, must be interpreted as precluding national measures, such as those at issue in the main proceedings, which allow a public administrative body of a Member State to transfer personal data to another public administrative body and their subsequent processing, without the data subjects having been informed of that transfer or processing.

In the life of this one government alone we’ve seen announced a series of database building initiatives. Not all of them will survive this ruling. The Irish Water database, for example, was assembled from disparate sources on foot of legislative provisions analogous to the Romanian law found illegitimate by the Court.

It will be for the Data Protection Commissioner’s office to take the next move.


Let’s build a data base!

The government hasn’t been slow to announce databases as solutions for all sorts of problems. Implementation has frequently proved more complicated.

Rural crime panic? Build a database of car movements through CCTV cameras on motorway exits that read and record number plates.

Want to charge people for their houses?
Build a database of addresses by sequestering info from other state, semi-state and private bodies.

Want to number the population but use it in ways not permitted by the existing PPS numbering system?
Build an entirely new parallel numbering system.

Want to create a new water utility and make everyone pay for it?
Build a database of every man woman and child in the state and try to track where they live from all the other databases you can think of.

Want to have a database of all the children in the state, linked to their PPS number and their mother’s ID for some unexplained reason?
Build a database of all the schoolchildren in the state by threatening to cut off the education funding of any children whose parents refuse.

Do even Intelligence Reports have to pass into history eventually?

Sometimes looking at these files, you can understand that it would be a bad decision to release them.

In particular, the files from An Garda Síochána are going to contain sensitive material. And, files containing Criminal Intelligence Reports (presumably, though I’m no expert, including data from informers) must surely be some of the most sensitive.

And yet.. and yet.

The National Archives Act allows that a file can hold both sensitive and non-sensitive historical records and, for a S8(4) certificate to issue, the certifying officers affirm that file can’t be made public “in whole or in part”.

What can we make of a series of Certificates granted in respect of Criminal Intelligence Reports files which all run from 1922 to the mid-1980s?

Should information and records which were created 92 years earlier- about people who would all now be into their second century if still alive- really be treated the same as records created a scant 30 years ago?

Perhaps they should. I don’t have access to the records. And perhaps there is an argument that such records ought not be captured by the National Archives Act at all. Perhaps no amount of time can pass before revealing the content would not be “contrary to the public interest”, a “breach of good faith” and “might cause distress or danger to living persons”.

If so, there is an argument for an amendment to the Act to exempt them. But, on the other hand, is it right that historians should never know the contents of those files?

The Oireachtas included the files within the ambit of its legislation. Presumably, it was intended that some day they should pass into history.

The question is, how long is long enough?

These are all secret ditches. Stop looking at them.

Part of the reason I asked for these files was because I was curious as to how reflexively the state would want to keep things secret. The thirty year rule was set so that we could understand our own recent history and historians could, in future, make sense of the broader narrative of the State’s development.

In a way, from my small 4-year sample, there’s an indication that, at least when it comes to historical documents, most departments aren’t trying to avoid their duties to history under the National Archives Act.

But, I was surprised to find one department had decided it simply couldn’t allow a range of files to be released- files that were, not thirty, but frequently over fifty years old.

The Department of Transport’s Airport division, for whatever reason, doesn’t think that details of (lots and lots of) contracts going back to the 1940s for the digging of ditches & the laying of wires are ready for the public gaze.

The Department of Foreign Affairs has a secret file on Shergar

I’m not sure I really need to say much more than that here.

Seriously, a secret Shergar file, from the Irish Embassy in London. Who could resist?

The info in file 3/175 runs from 1983 to 1984.

I guess, seeing as Iveagh House isn’t going to tell us, we’ll have to rely on Tesco to spill the beans.

I’m sorry, I can’t tell you about the weather. It’s a secret.

Dealing with these files sometimes throws up questions of balance. After all, you can see why personal data relating to job inquiries or sometimes even sensitive family matters such as adoptions shouldn’t be released heedlessly into the public domain.

But in 2013 the Department of Foreign Affairs decided that file 250/1048, containing “Meteorological Data” covering the years 1953-1981 should be kept secret. The Certificate cites Section 8(4)(a) which requires that the file being withheld shouldn’t be released because it

(a) would be contrary to the public interest,

How this relates to the weather reports from the middle of the last century, and why the Dept of Foreign Affairs kept such a file remains, of course, a mystery.

What? It was just some perfectly normal fertiliser we were getting the Army to test

This is doubtless just your standard fertiliser to make daffodils and such bloom even more lovely. It’s just that, for whatever reason, the Department of Justice thinks that the details of what happened between 1978 and 1981 when they explored the manufacturing of fertiliser by getting the army to test it are still not ready to see the light of day, some thirty years later.

Three days that shook the CSO

I have no idea what happened over the Halloween Bank Holiday weekend of 1971. I mean, I’m sure lots of things must have happened. But whatever it was that happened in the “Central Statsitics Office Establishment” that weekend, the Department of the Taoiseach thinks that thirty years isn’t enough time for us to know.

These things are, officially, secret

I’ve written before about the Irish state’s love of all things secret. When I went rummaging in the legislation that governs how the state keeps things from becoming known I spotted one little moment in the chain when we could- at least obliquely- get a peep at what was being hidden from us.

Every year, the state’s agencies and ministries are meant to send their files that are 30 years old to the National Archives, where they are free for the public to examine.

Obviously, the state is frequently not really happy about this. So, every year, its agencies and ministries invoke the exceptions provided for in the National Archives Act so they can keep things they don’t want the public to see hidden from view.

But, to do this in line with the Act, they have to get a Certificate exempting each file from being released. And the Certificates have to, however briefly, describe those files.

So, just for starters, I FOI’d some of those certificates. Specifically, those issued between 2011 and the end of 2014. It took a few months of back and forth with the Department of the Taoiseach but I think, after a slight hiccup that delayed release for four months, the outcome was pretty good.

Here then, compiled into a single package, are all the Certificates exempting Irish state files from public scrutiny that were “signed by the Consenting Officer in the Department of the Taoiseach, in relation to the withholding of files by government departments/public bodies under section 8(34) of the National Archives Act 1986, between 1st January 2011 and 1st January 2015.”

Over the next week, I’ll be picking out some of my favourite gems from the pile of hundreds and hundreds listed across just those few years. And, though I might be busy with the arrival of a new baby at some point, do @ me on twitter @Tupp_ed if you see anything fun too.

You can also read the Irish Time’s reports on these files;

Shergar and phone tapping files withheld from public
Certificates reveal what files Government wants kept hidden

Full FOI on National Archive exemption Certificates

Direct download link: Full FOI on Certificates 2011-2015