Law | Levities | Limerick
A&L Goodbody has published a useful FAQ on the status of bills currently before the Oireachtas, given that the President has dissolved the Dáil.
In summary:
- Bills going through the legislative process in the Oireachtas at the time of the dissolution of the Dáil prior to a General Election will lapse.
- The new Dáil will decide which bills it intends to pursue.
- These bills will continue at the particular stage they had reached prior to the dissolution of the Dáil.
Interestingly, many of this top 10 are slow-burners that didn’t get many readers when published but have steadily attracted visits over the year, mostly by showing up in Google searches. The top 5 search terms are:
Of particular interest is the list of top referrers, which shows how people arrived at this blog. I wasn’t surprised that Twitter came out on top, as links are fed from the blog to my account. The second highest referrer was Eoin O’Dell’s excellent blog cearta.ie, and I am grateful to receive some of his many visitors. The third highest referrer was Facebook, which was a surprise, as I don’t push links to Facebook.
I hope to keep going for another 100 posts or more. Thank you for reading and, though most of you have remained anonymous so far, all comments are welcome (particularly those that disagree or correct errors!).
[Updates at end] The Minister for Justice has published the Criminal Law (Defence and the Dwelling Bill) 2010. In 2009, the Law Reform Commission published a report on general defences in criminal law which addressed the specific issue of home defence, noting:
The law surrounding these defences, as with many aspects of the criminal law, has evolved over time. The nature and scope of these defences have, in the Commission‟s view, been troubled with some inconsistencies, competing rationales and even arguments as to whether they should be abolished in certain instances. In this Report, the Commission proposes to provide a more coherent framework for the future application of the defences.
As indicated by the above statement, there is already plenty of law on the subject but, as it derives from case law it can be unpredictable and often fails the black and white certainty test called for by the media and public on certain occasions.
A reasonable defence against theft of some petrol?
Background
The Law Reform Commission suggested draft legislation to clarify the law on home defence which was not adopted by the Minister (though he might have been expected to). In reality, the new Bill has been generated as a response to the killing of John “Frog” Ward. A background to that case and the resulting prosecutions of Padraig Nally is available on Wikipedia, and the usual health warning applies.
That Mr. Nally was convicted, successfully appealed and was acquitted on re-trial evidences the lack of clarity or consistency in the law. Nevertheless, it is a strange case to act as a catalyst for new laws to strengthen the position of those who use force in self-defence. Mr. Nally was living alone at his home and appears to have been subjected to an indefensible series of incidents which led him to feel threatened in his home, but the case was not the stereotypical home defence case. It should be remembered that that:
Other proposals to change the law on home defence
In response to the Nally cases, Fine Gael presented two private members’ bills on this issue in the Oireachtas, both with similar content, in 2006 and 2009. Both provided that, where a trespasser is unlawfully present in a dwelling “and remains within the dwelling”, resulting in the use of force by the occupier, that force is presumed to be reasonable unless the contrary is proven. However, nothing in either bill would have provided a defence to a charge of murder.
In addition to addressing criminal liability, both bills provided that no liability in tort would accrue to the occupier “in respect of any harm, whether serious or not, caused by his or her actions in relation to a trespasser” unless the force used is found to be unreasonable.
The Law Reform Commission’s draft bill provided, in relation to dwellings, that a person could use force (including lethal force) in the dwelling or the vicinity of it by way of defence to the threat or use of unlawful force by another person. This would only apply in the case of a threat of death or serious injury, rape or aggravated sexual assault, false imprisonment by force, unlawful entry to or occupation of the dwelling and damage to or destruction of the dwelling.
The Government’s Bill
The Minister’s Bill provides that it will not be an offence to use force within a dwelling against another person or their property where
The substance of the Bill provides much scope for debate, not least because the Fine Gael proposal did not provide a defence for a murder charge: the Minister’s Bill does. The criteria for reasonableness are in need of greater scrutiny but the provision on civil liability raises new questions.
Section 5 of the Bill provides that a person who uses force as permitted by the Bill shall not be liable in tort “in respect of any injury, loss or damage arising from the use of such force.” Such a provision could block claims like those taken by Mr. Ward’s widow against Mr. Nally. It will be interesting to see how this provision will work. The criminal justice system requires proof of guilt beyond reasonable doubt; the civil requirement is a lesser threshold of satisfying the balance of probabilities. If the user of force is acquitted on the basis of a section 2 defence, does that determine the matter for a judge hearing the civil trial? Or will the judge hearing the civil trial have to consider the issue, for example where no prosecution is brought against the user of force? If that judge determines that the force used was not permissible, will a prosecution result? It would certainly seem that cases of this sort should be excluded from the operation of the Injuries Board, which will hardly be in a position to determine the issue, but the Bill is silent on this.
Fine Gael’s 2009 Bill referred to harm caused “in relation to a trespasser”; an imprecise phrase but one assumes that it absolves the user of force from civil liability to the trespasser. The Minister’s 2010 Bill is not so limited, allowing for the potential that a lawful resident, guest or neighbour who might be injured as a result of the force directed at the trespasser will be barred from taking action against the user of force. Alternatively, a guest in the home could use lawful force against a trespasser but injure the home owner. Section 5 appears to absolve that guest from all civil liability.
Does this Bill clarify the law?
The first draft of this Bill is likely to be a source of further confusion and ambiguity. It certainly does not tie up loose ends. While it is presented as legislation that “clarifies” the law, it is more accurate to say that it merely updates or amends the law. Sections 2(3) and (4), along with other aspects of the Bill, arguably do not advance the clarity of the law on this topic. Despite frequent complaints from the public (and lawyers) that legislation is difficult to understand, those subsections are barely comprehensible. It is baffling that a simpler way could not be found to express some aspects of this Bill.
However, given that it resembles the Fine Gael bills at the high level, it could attract a good deal of cross-party support and pass through the Oireacthas without detailed scrutiny of its wording. This happened recently with the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, Part 15 of which did not receive significant textual scrutiny despite criticisms from leading academics that the provisions on cohabitants’ rights were poorly drafted, contained anomalies and could do more harm than good.
Updates
Now a Bill has been introduced whose only purpose seems to be to respond to that vibe of five years ago, thereby neutralising any opportunist point-scoring in that arena by Fine Gael, while, incidentally, reminding Fianna Fáil TDs that there is a strong man around, should they be looking for same between now and the election.
The nature of a registered business name (RBN) is a common source of confusion and misunderstanding. A frequent misconception is that an RBN is a form of trade mark: it is not. Having an RBN is a simple compliance requirement and does not offer any protection in the name registered.
Running a business
There are a range of ways in which a business can be operated:
Using a business name
Whatever of the above structures one uses to carry on business, an RBN will often be necessary. Where a name is used in the course of business that is not true name of the business, the Registration of Business Names Act 1963 requires that the name is registered with the CRO.
The following are common examples of when registration is required:
Why must you register?
The system of business name registration allows other people to find out who runs the business. This is not a problem if a business is run under a person’s own name or under a company name, which can be searched against in the CRO. But if an assumed name is used, how is a customer or supplier to know what legal entity is behind the business? The question often arises as follows: who do I sue?
The requirements of the Registration of Business Names Act 1963 are often not observed and, it would seem, enforcement is not a priority. The equivalent legislation in the UK was repealed in 1982 and business name registrations are no longer possible there.
What a business name is not
Letting people know
If a business uses a registered business name, all business letters, circulars and catalogues on or in which the business name appears must contain the following information in legible form:
An additional set of disclosure rules apply to Irish-registered companies, whose letters, notices, publications, order forms and websites must contain specific information.
The political football of judges’ pay has been thrown back on the pitch by Fine Gael. In today’s Irish Times, Alan Shatter (FG/DSth) makes the argument for his proposed constitutional referendum.
Fine Gael’s front bench spokesperson on children, and himself a prominent solicitor, suggests that the voluntary scheme by which judges can currently volunteer to pay the pension levy is a “slippery slope”, as it cause judges to fear that they will only be promoted if they volunteer to pay the levy. This would run counter to the spirit of Article 35.5 of the Constitution, which says that “[t]he remuneration of a judge shall not be reduced during his continuance in office” and is aimed at protecting the separation of powers and judicial independence.
Deputy Shatter makes a crucial point: “judges should not be perceived as succumbing to political pressure or as an elite living in a financial ivory tower immune from the financial emergency confronting the State.” The Government’s handling of the issue has invited both possibilities, but is Deputy Shatter’s conclusion that a referendum is necessary correct or desirable?
Today’s piece in the Times and Mairead Enright’s post over at Human Rights in Ireland cover the law on this topic. Many in the legal profession were surprised by the Government’s decision not to include judges in the pension levy. Few appear to believe that the pension levy would obviously contravene Article 35.5, though some weight must be accorded to the suggestion that it would, given the authority of the Attorney General and the esteem in which he is held.
Of course, any challenge requires a plaintiff. In practical terms and in the context of Ireland’s current economic and political environment, it would be surprising if a judge were willing to run the gauntlet of public opinion by litigating on this point.
If a referendum is to be held, could the Government adopt Deputy Shatter’s proposal? The proposed wording of his new Article 35.5 reads:
The remuneration of a judge shall not be reduced during his continuance in office save where it is necessary to address a serious threat to the State’s economy, there is a compelling need to stabilise the State’s finances and as a consequence it is necessary to effect a reduction in public service remuneration; in such circumstances any reduction in the remuneration of all public servants or in the remuneration of a class of public servants may be applied to effect a comparable reduction in the remuneration of all members of the judiciary.
The highlighted words and phrases raise immediate questions. What constitutes a serious threat? What, exactly, is the State’s economy and, if it is something other than the State’s finances, how is a reduction in judges’ pay necessary to address that threat? What is a compelling need?
In addition, the wording imposes requirements of necessity and is cumulative: it must be necessary to address a serious threat in the economy and it must be necessary to stabilise the State’s finances in order for judges’ pay to be cut. Granted, it may be unlikely that you would have one without the other, but the wording is less than solid. (To be fair, any opposition PMB is a political, rather than legal, proposal.)
It would be better to have a simpler, clearer statement that could be fleshed out by means of primary legislation. It could be provided that the remuneration of any individual judge shall not be reduced during his continuance in office, save where such reduction applies to each judge of the same court or to State employees in general. This would avoid unnecessarily restricting Article 35.5 should different circumstances arise in the future which do not relate to the economic sky falling in but which equally require public sector pay adjustments.
The Government has arguably created an unnecessary and damaging controversy. Discussion of Article 35.5 is couched in much hand-wringing of the need to protect the independence and authority of the judiciary: exactly what this controversy has failed to do. Had the levy been imposed, judges would doubtless have been as disgruntled as others who have had their pay cut in recent months, but by creating the voluntary scheme they have invited public opprobrium.
In political terms, the correct course of action would have been to include judges in the pension levy and other financial adjustments and make no particular comment in relation to the matter. This is not to suggest that the Government ignore the Constitution; given that the constitutional position of the levy as respects judges is debatable, there is an argument for this course of action and to do so would not be flagrantly unconstitutional.
Instead, we have unnecessary debate on a niche area of expenditure which has been blown out of proportion, leading to calls for wasteful referenda to introduce constitutional amendments which may not be future-proof.
Via Out-Law, the Scottish Government plans to reduce the amount of personal data it collects.
[The Government] has proposed a set of Identity Management and Privacy Principles with which public bodies will have to comply. The principles move the Scottish Government away from the trend of building very large public databases of personal information.
“Organisations should avoid creating large centralised databases of personal information and store personal and transactional data separately,” said a statement outlining the plans. “People should only be asked for identity when necessary and they should be asked for as little information as possible.”
This chimes with the requirements of the Data Protection Directive, implemented in Ireland by the Data Protection Acts 1988 and 2003. Section 2(1)(c) requires that personal data is collected only for specified, explicit and legitimate purposes. This data cannot be further processed in a manner incompatible with that stated purpose and the data must be relevant and not excessive. Neither should it be kept longer than necessary.
The new Scottish approach is in marked contrast to the data-hungry attitude of most government agencies, including our own. For example, the PPS numbering system, originally intended only for the administration of social welfare payments and tax deductions, has balooned into a general purpose citizen ID number. In the UK there has, at least, been extensive debate about the merits of a scheme of national IDs but in Ireland a de facto national ID system is creeping in around the edges.
In addition to the provisions of the Data Protection Acts, the Social Welfare Acts and the PPS code of practice published by the Department of Welfare govern the PPS system. The most important provision of the Social Welfare Acts in this regard, and one which does not appear to be widely appreciated, is section 223(6), which states that it is an offence to use or request a PPS number from someone unless specifically entitled to do so (e.g. by being a State agency named in the Acts). Nevertheless, it is routinely sought by private sector entities and professionals without specific thought as to whether the number is required in the transaction. State agencies appear to be satisfied that they are entitled to seek PPS numbers if they are listed in the Social Welfare Acts, regardless of the implications of the Data Protection Acts.
The gradual extension of the PPS system allows for the collation of vast amounts of data by Irish government agencies. Irish politicians should adopt the Scottish approach and decide that a positive policy should be implemented which ensures that agencies request information only when it is both relevant and necessary.
