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The National Risk Assessment for 2014

The Taoiseach has published the Draft National Risk Assessment for 2014. The good news is that, by implication, there will be another in 2015 and that it is open for public comments until the 30th June. The bad news is that, in briefly harking back to the past, it fails to correctly describe what really happened.

Then there’s the tone; the authors never question the possibility that they are not competent to write the Assessment. Presumably, they followed the nostrum they urged on the Civil Service – avoid groupthink. It may be the case that, of the available possible authors, they are the best, but if so they are not good enough. Like military experts, they are confident of winning the last war when it reappears in the future. One suspects that they view the opportunity to write the Draft National Risk Assessment for 2014 as one of the few upsides to the national disaster that has befallen us.

If so, why not follow the logic of criticising “groupthink”, with the reflection that a problem like that is a social problem?

What, then, might be said to be wrong with Irish society?

Local government is a good place to start. Before the founding of the state, Irish local government was corrupt. It is easy to imagine the impossible task faced by UK central government in trying to suppress something like that in Irish domestic politics. That corruption is still with us. It may have historically take the form of theft of public property or the sale of public administration, but more usually it takes the form of resolutely eliminating any regard or consideration for “out-groups”. The most prominent “in-group” is the staff of the local authority itself. It is necessary to mention that local government has its equivalent of a central government circus of “experts” and “professionals” whose principle source of income is the local authority and who, often, are less removable than the County Manager himself.

More generally described, Ireland has a human rights problem.

Administration, even the administration of justice, is seen as the application of a process, by officials, to persons. In this process, the means is more important than the ends. The process is, apparently, the important thing, not the outcome. Even this, however, is subject to review; if the process is not, in the events that have happened, acceptable to the officials, then it can be adapted to produce the desired outcome. Somehow, there is an interest which trumps all other interests; the interests of the organisation.

This view of things is diametrically opposite to the view ostensibly adopted by the Draft National Risk Assessment for 2014. That’s a good thing; if the National Risk Assessment endorsed the pursuit of organisational interests over national or individual rights we would be in quite a pickle.

The National Risk Assessment seeks to drive up performance and improve civil servants’ skills, but it is weak on the point. Saying “be good” is not sufficient. There has to be a focused assessment of processes and procedures to assure the correct outcome for them. The absence of the right skills must be identified. (Judges, for instance, due to their professional backgrounds, generally have no record of talent in administration). Even when problems are identified they are ignored, when, in fact, they should be systematically highlighted before they cause too much damage.

Here’s an example: when a planning authority official arrives at your property to search it, don’t bother demanding his/her search warrant. They don’t need one, according to Section 253 of the Planning and Development Act 2000.

Irish voters have just selected hundreds of new councillors to sit on local authorities across the country. It would be no small thing if some of those fresh new faces began to ask questions about whether their own officials’ perfectly legal actions may one day warrant a mention in a future Risk Assessment document.

CJEU Judgement: Google -v- AEPD and the rise of EU privacy law

The Court of Justice of the European Union is the highest court in the EU. This year has seen a landmark set of judgments from the court around issues of Privacy and, more broadly, the assertion of the Charter of Fundamental Rights as a significant Human Rights document.

The most significant of these is, of course, the Digital Rights Ireland case in which we act for the Plaintiff. But today saw another assertion of the privacy rights of the individual, with the Court affirming that individuals may seek the removal of links which damage their reputation- including links to archived lawful reports- from Google searches.

Though the full scope of the consequences of Google -v- AEPD will take some time to be worked out, it is clearly another statement in the rapidly developing EU caselaw on privacy rights. It will also have commercial consequences, by making newspaper and other media archive paywalls more economically attractive. When a researcher can’t be sure that a Google index will return all the relevant returns on an individual, the value of reliable private archives is bound to increase.

Find below a link to the full text of today’s judgment.

CJEU Judgment Google v AEPD

Below the fold point: Some outlets are reporting that this judgment means that Google must amend their results on request. In fact, what is being removed and who is asking for it to be taken out will have to be weighed up for each request. We can expect considerable sparring across the EU before we have a clear idea of where the lines are to be drawn for each of those factors. And, given that the European HQ of the biggest data driven companies (including Google) are located in Ireland, it is likely that this jurisdiction will see a disproportionally high number of those tussles.


There are many varieties of austerity. There is the modest hope of Padraic Colum’s “Old woman of the roads” , thinking of the possible house she would be content to own:

“I could be quiet there at night

Beside the fire and by myself,

Sure of a bed and loth to leave

The ticking clock and the shining delph!”

And then, there is the austerity and integrity of Fran Halsall in her book, “From Shore to Summit”.

You get two things in this book; possibly, visions from an exo-planet and a dedication to tracing and understanding the deep past of Britain and Ireland. Of course, our current landscape is not like the landscape of the Jurassic or the Cretaceous, but Fran Halsall shows every indication that she would go back there if possible or necessary.

Few people have the professional discipline to take them to “Deep midwinter, High Cup Gill”

Or even to “Vale of Edale, fields and moorland”

Buy this book.

PIP scandal: Terms of Government care package

The HSE has circulated a letter to GPs around the country informing them of the State’s scheme to pay for women who require surgery to remove PIP implants to have them removed.

HSE Letter to GPs

Please see below for a copy of this letter. We’ve indications that not all GPs may have received it yet so, if you intend discussing it with your doctor, we suggest you print the HSE’s letter out and take it with you.


PIP Breast Implant HSE Letter to GPs

Freedom of Information: The World of Hurt

Gavin Sheridan has an excellent essay in today’s Sunday Independent, debunking all the arguments advanced for our State’s insistence on charging an upfront fee for making a Freedom of Information request. You should hurry away and read it.

Consider this post a footnote to Gavin’s piece. I wanted to write a little bit about the arguments that aren’t advanced to justify our fees regime. I wanted to give an explanation for how the state apparatus came to be wedded to restricting citizens’ (including journalists’) access to information. As Gavin shows, the ones we’re told in public don’t hold any water. So, here is my brief explanation of explanations that dare not speak their name.

Here’s what you have to understand first. Politicians in power will always hate Freedom of Information. Just take that as a given. It takes away one of their few advantages when faced with opposition (those advantages growing fewer each year as ungovernable social media gradually overtakes controllable mass media). It makes dissembling difficult and turns misinformation into a pistol pointed at their own heads. For politicians in power, there is no real upside for Freedom of Information, except a nebulous sort of recognition if they do the right thing by it.

So, that’s the political class’ instinct. What is special about Ireland’s situation is that Freedom of Information is a running sore in the administrative class- the Civil Service. I can only assert this, and you can choose to believe me or not when I say it, but the Civil Service hates FOI. Hates it, and resents it but most of all- above everything else- is upset by it.

Upset. I really can’t stress enough that the absolutism, the determination to plough ahead regardless of public opinion or political consequences when it comes to FOI fees is driven largely by a mass, emotional response within the Civil Service. At every level, for different reasons, Civil Servants are stressed and angry when an FOI request appears. Let me take you on a gentle wander through some of the reasons why.

I draw for these speculations on my experiences working as a Civil Servant, sitting at the desk beside my Office’s FOI officer. All characters are fiction, though their motivations may be true.

You’re in a frontline office. You’re a junior manager. You have a medium-sized staff of disgruntled employees to manage a job designed for a large staff. You and the staff are, quite literally, abused as a matter of routine by people who you feel that you struggle to do right by. It’s an effort just to make it through the day and you get stressed at night if you think of the morning.

Now, a message has arrived to your inbox. Someone has asked an FOI question. To answer it, you and every other social welfare office manager in the country will have to send statistics back to the FOI officer on a tight timeframe. Your face flushes. You can hardly keep up with the work you have, you’re getting abuse all the time and then some joker wants you to pull staff off counters to collect up info you didn’t think you’d need to compile at all for months, until the Annual Report rolled around.

In your mind’s eye, you see the snaking queues building as half the counters are closed. You already can hear the added frustration and conflict this will generate.

No, you don’t want to see more FOI requests. If you had your way, you’d add two zeros to the fee and hope everyone stopped using the damned act altogether. It’s wasting Civil Servants time and taking them away from doing real work.

You ring the FOI officer to give him a piece of your mind.


Now, you’re at the top of the tree. A senior Civil Servant deeply embedded in matters of policy and national importance. You have a well qualified staff of bright graduates in the office outside your room. Not many, granted, but probably three or four. Enough to filter most of the problems that struggle upstream to you, leaping like salmon over middle managers.

But now there’s an email for you from the department’s FOI officer (printed out and left on your desk to read, as you don’t use those computer things). She’s been building an excel table of expenses in response to an FOI query from a journalist. There are standing orders that nothing should be released on FOI without it being given prior approval at the highest level.

That’s you. And you realise you are going to have to work out what these thousands of spreadsheet numbers mean and also, whether releasing them into the wild would mean your department or minister will find themselves in the headlines for all the wrong reasons next week.

You look at your diary. It’s filled with meetings, longstanding inter-departmental engagements and ministerial briefings. You look at the time limit for response in the email- a few days at best. The FOI officer’s excuse was that the line offices just wouldn’t respond to her emails as she was trying to compile the chart. You look again at the thousands of little boxes filled with tiny numbers.

Your face flushes. What sort of Act lets some joker of a journalist derail an entire department with his fishing expeditions?

You pick up the phone to have the FOI Officer summoned to your office to explain herself.


You’re an FOI Officer trying to do their job. I think you know by now why you might be feeling upset.


I’m not saying any of these responses are correct. But I do think that we have to understand them- to put ourselves in other people’s shoes- to know why they are cleaving to apparently irrational positions. The Civil Service experiences FOI as an upsetting, stressful and wasteful interruption from the job they’re assigned to do.

If we’re going to be able to persuade them from the current policy of building the walls around FOI even higher instead of pulling them down, we have to find better ways, for both citizen and administrator, of getting what we want.

In the short term, there are a couple of policies that could be adopted to take some of the sting from FOI.

1) Publish every FOI request and their responses.

Avoid duplication of work by just putting everything asked for and given into the public domain. Some Departments do this already. In theory, this eliminates the chance of a scoop for journalists from an FOI answer. In practice, as we learned during recent convulsions, the media rarely wander off the beaten path of Press Releases and off the record briefings anyway.

2) Identify certain valuable classes of information and publish them all on a regular calendar, Service-wide. Don’t wait to be asked.

The obvious choice here is to publish every line of expenditure from the departmental databases on a monthly or bi-monthly basis. The precedent for that disclosure has already been set. Maybe you can come up with your own interesting class of data?

3) Stop pandering to the paper-fetish. Just disclose data as data, not photocopies of printed out computer files.

This is really a no-brainer, but that it still needs to be said is evidence of the howling rage at the heart of FOI as things stand.

Long-term, the solution to the Civil Service’s Freedom of Information problem is to change how they handle and view all information. Records are siloed so local managers have to scramble to compile them. They should be open and identifiable from across the organisations. Files aren’t managed according to any document management criteria, even if any has been notionally set. As a result, finding where a given set of records may be can involve a physical search across multiple offices. And so on. It’s only when the administration of the state has a handle on its own information will it be able to effortlessly release whatever it ought to the rest of us.

And if that ever happened, we wouldn’t just have gained a revolution in transparency. We’d have a state fit for the 21st Century.


Legal Education

When Eoin O’Dell was free to publish his blog “cearta”, one of his perennial topics was that of legal education. He was notable for this; he was writing in a desert.

There is probably no perfect or ideal education for a lawyer. In fact, we may need more than one type of person to deliver legal services to the nation and that implies more than one type of education.

There is a strong case for having the lawyer-to-be well grounded in history. When we, collectively, make errors it is important that we not forget those errors. If we think of the legal profession as a larger version of a “University Challenge” team, we would like to have someone numerate on the panel; someone articulate or artistic; someone with “the common touch” (i.e, follows football or understands Bertie Ahern’s speech etc.).

This approach has some promise in another area; when the lawyer wants to quit the profession and become a judge, what tests should we apply to the candidates?

We should give up testing them on their “knowledge”; instead we need to test their beliefs. A tiny beginning would be to spring a test wherein they have to define, without reference to a dictionary or the internet, certain words.

Here is my initial, inadequate, collection of suggested words: jingoism; appraise; refute; cabal; chauvinism; party; conspiracy; public; republic; apology; economical; military; intelligence; meaning; insolent.

Is it yourself, then?

It is high time to re-evaluate people. Take the Garda whistleblowers, former Garda Wilson and Sergeant Maurice McCabe. Few commentators have remarked upon an obvious fact; they have been subjected to extreme stress.

People like that are entitled to our understanding of their difficulties. To claim there are only two of them, as then Garda Commissioner Callinan did, is laughable; it is astonishing that there are so many of them.

Human beings are fragile, but there is a mistaken idea in society as to what a person is. Take memory, for instance. Memory is not like CCTV in our head. Memory is constantly being re-constructed. It is affected by our later experiences.

Now, take vision. In every waking moment of our lives we generate false images of what we “perceive”. This is valuable; we do it to eliminate our blind spots. There is one in each eye, caused by the optic nerve on the back of the eyeball. In our visual field it is about the size of a lemon; that’s a big black void. We mentally delete it and replace it with an imaginary “wall paper” consistent with the rest of our visual field.

Also, we can suffer from “false” memories. These are supposed recollections of events from our past, but have been created in our minds due to suggestibility or, significantly, leading questions. This has been known since at least 1932

Research has shown that it is possible to have a woman, dressed in a gorilla costume, walk across the view of subjects and for half of them not to see that woman. This is “inattentional blindness”.

It is claimed that a person’s political outlook can be judged on his/her view of other human beings. A “conservative” person judges the person and sees personal fault; a “liberal” person judges the society and sees social fault [as explaining human actions].

These are very awkward ideas for lawyers. Lawyers, particularly those chosen as judges, tend to be conservative and to attribute personal faults to others. If a person is not completely autonomous and fully in control of himself or herself, what is the justification for punishing that person or even attributing a “meeting of minds” for the purposes of the law of contract?

Now that the Data Retention Directive has been struck down we should look at how easy it is for millions of people to be controlled and confined with little possibility of being able to articulate an opposition to that control. The obverse of this is that it is easy for people with power to exert that control. Only if we admit we are vulnerable will we successfully oppose abuses of power.

Digital Rights Ireland: ECJ Judgment striking down Data Retention

This morning, the European Court of Justice-the EU’s top court- gave its judgment on the EU’s data retention directive.

The ECJ has struck down the Data Retention Directive (Directive 2006/24/EC) because it is incompatible with the EU Charter of Fundamental Rights.

In particular they say;

‘It therefore entails an interference with the fundamental rights of practically the entire European population’ (Para 56)

‘It must be held that, by adopting Directive 2006/24 the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter’ (Para 69)

Background to today’s decision:
Digital Rights Ireland: Judgment Day Q&A

Our previous posts on this case, including full text copy pleadings.

All Digital Rights Ireland posts

Statement from Digital Rights Ireland on today’s judgment:

Press Release from the ECJ on ECJ Judgment on Data Retention Directive

ECJ Judgment on Data Retention Directive (in English)

Judgment of the ECJ in Digital Rights Ireland data retention challenge by TJ McIntyre

Carry on…

In Damache v DPP, Ireland & the Attorney General, IESC [2101], (“Damache”) the Supreme court decided that Section 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) was unconstitutional.

The Section permitted a person, not independent of an investigation, to issue a search warrant for the purposes of the investigation. The court found that a police officer engaged in an investigation is not an independent person for these purposes and therefore that his warrant was issued in breach of the constitution.

The case illustrates some of the disadvantages of declaring law through cases. In passing, it approves the practice of the issuing of warrants by District Justices and/or Peace Commissioners, without stipulating what the level of presumed oversight to be exercised by those office holders ought to be.

It does recommend that the reasons for the issuing of a warrant should be recorded, but it makes no reference to the reality of the issuing of warrants; a District Court Judge or Peace Commissioner will have no access to the facts of a case beyond the facts revealed to them by the investigating police/revenue officer. Indeed, it is the officer who decides what offence is being investigated and, as (“Damache”) shows, the accused may ultimately be charged with an offence other than the one ostensibly being investigated. Indeed, there is little or nothing in this procedure to prevent an accused being arrested and charged with an offence of which he is innocent (even one for which there is no evidence).

It is misleading, as (“Damache”) assumes, to suggest that there is independent oversight of police investigations by District Justices and/or Peace Commissioners (or any similar office holder).

Medical Negligence and “Doctor X”

In January 2008 we reported the publication of a book by an anonymous Irish doctor, detailing the failings of the Irish hospital system. See a report HERE.

The doctor was running a website and was featured speaking on national radio.

The website is now not to be found and the book is not readily available.

Medical errors happen everywhere; they are not unique to Ireland. In the USA and the UK, the responsible authorities collect statistics to find out why those errors happen. Those statistics indicate the areas of risk where those errors occur.

In Ireland, we need to also to find out where and why such errors happen. The State Claims Agency is responsible for defending patient claims arising from such errors. It is in a good position to tell us where and why the errors happen.

Instead, it tends to attribute the claims to the greed of patients, as it did in 2012 saying it thought medical negligence claims were rising in Ireland because patients needed to generate new sources of income.

Medical negligence is not caused by patients; it is caused by hospitals, doctors and nurses; hence the name. It is the negligence of the medical profession that is the problem, not the evil desire of injured persons to be compensated unjustly.

We ought to know why “Doctor X” no longer has his website. Was he silenced? Is there a system in Ireland of suppressing free speech, particularly by medical or legal professionals?

Who, exactly, is suppressing that free speech?

How is it done?