The Court of Justice of the European Union today declared the Data Retention Directive invalid in a joint case brought by Digital Rights Ireland and an Austrian group. This is a great win by privacy advocates against a law that was over reaching, uncontained and unsafe. The courts own press release is a short three page read but some of the key elements include (all emphasis theirs):
- the dataÂ “may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented”;
- “the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data“
- “the directive covers, in a generalised manner, all individuals, all means of electronicÂ communication and all traffic data without any differentiation, limitation or exception beingÂ made in the light of the objective of fighting against serious crime”
- “the directive fails to lay down any objective criterion which would ensure that theÂ competent national authorities have access to the data and can use them only for the purposes ofÂ prevention, detection or criminal prosecutions concerning offences that … may be considered to be sufficiently serious to justify such an interference” and “the directive does not lay down substantive and procedural conditions under which the competent national authorities may have access to the data and subsequently use them”
- “the directive does not provide for sufficient safeguards to ensure effective protection of the data against the risk of abuse and against any unlawful access and use of the data.”
- and, shockingly (if none of the above was shocking enought), “the directive does not require that the data be retained within the EU“.
This is indeed a good day for digital rights, privacy rights and common sense. We all owe a debt of gratitude to the volunteers at Digital Rights Ireland.
I’m surprised. Pleasantly so; actually, exuberantly so. I thought the battle was lost and that democracy here in Ireland would have taken a hit today. But, in the words of a friend,Â every time I lose faith in the Irish electorate, they suck me back in.
In a – if you were to look at recent opinion polls – shock result, the Irish electorate voted by 51.7% to retain our second house, Seanad Ã‰ireann.
I have some reflections on this:
- Firstly, it’s a fantastic result for all the reasons I mentioned here.
- Without repeating the points I already made in the above link, it’s a great result for democracy. It’s not enough that we’re aÂ democratic country by name but we should be aÂ great democracy. Particularly with our executive-cum-parliamentary system, we need a second house. But not the one we have, a reformed second house:
- Let’s be clear -Â no one, not a single person, argued to keep the Seanad in it’s current form. Rather, we argued to keep it and reform it. The Government now have a clear mandate to reform this dysfunctional but necessary house and they need to follow through on that. Particularly, Fine Gael got elected on a wave of the promise of reform and have done little in that respect since. They now have a clear public mandate to do something concrete in this respect with the Seanad. And, God knows, we have enough reports and proposed bills to help it happen fast.
- The turnout was higher than expected (while disappointingly low at 39.2%). This high(ish) turnout means that one cannot argue that the pro-side were apathetic and the no-side were motivated and turned up. Rather – and I suspect deeper analysis will prove this – the undecideds fell to the no-side.
- Enda Kenny. Disaster. This was his baby. In a cynical political stunt at a Fine Gael dinner in 2009, Kenny announced that he would abolish the Seanad in Government. Only months after lauding it. This may very well be one of the most expensive after dinner speeches in Irish history – whatever abolishing the Seanad may have saved, what of the cost of the failed referendum? But, back to today and this campaign. Kenny did not tog out. He didn’t even come to watch the match. Whoever his handlers are, they should be outed and fired. A 1.7% margin could easily have been closed had the leader of the country stood over his own idea. This, more than anything else, was the biggest failure of the campaign. If there aren’t knives out for Kenny within his party, there should be.
- Naturally the blame game started early. Some Government TDs were spinning early that the no vote was a result of people’s desire toÂ give the Governnment a bloody nose. This is an insult to the voting public. The Government gets a bloody nose in by-elections – especially when DÃ¡il numbers are not in the balance. But the Irish electorate is too intelligent to change our most valued and core law on petty party politics. TDs suggesting this should not get your vote in future elections.
- More depressingly, Kevin Humphreys TD (Lab, Dublin South East) suggested the people in his affluent area (i.e. the suggestion is college educated) voted to protect their franchise (i.e. their university Seanad votes). Are you fucking kidding me? Seriously?
- A number of muppets called for a ‘no’ vote but to also writeÂ REFORM on the ballet paper to enforce Â the intention was aÂ save but reform. Intelligent people called for this. People I had credited with more cop on. These people are muppets – and, if you spoiled your vote like this, so too were you. Yes, returning officers have discretionÂ where the voting intention in clearÂ but it’s not guaranteed they’ll use it or that their perception ofÂ clear matches yours. The spolied percentage in this election was 1.16% versus 0.43% and 0.39% in the previous two referendums. Given the tightness of the result and the fair assumption that the difference were mainly no votes, these could have been critical.
- A question for Fine Gael is where were the heavy hitters of cabinet? Noonan in particular who is a very trusted political figure. The campaign was left to Bruton and a rag tag bunch of back benchers such as Simon Harris TD and Sen. Regina Doherty (both, if I’m not mistaken, are first termers). There was also very few of the Labour heavy hitters batting in public for this.
- Sinn FÃ©in made an unusual decision to back the Government. They usually put themselves on the minority side of a referendum to maximise airtime. I don’t know if it’ll hurt them in the short or long term but it won’t help them. It also grated with me to listen to Pearse Doherty calling for the abolition of a house where he served the last term and provided him the platform to run successfully for the DÃ¡il.
- Fine Gael made a lot (well, was it a six page document?) of promises about reform of how legislation is made. These rang hollow and rushed so I fully expect them to find their way to the shredder.
- The media seem to be playing up a city / country divide. Roughly, it’s 45% ‘no’ outside the cities and 55% in the cities. That’s not a big divide. It’s two people in every twenty. Or a swing of one in every twenty to tip the balance. One most also bear in mind that most of the Fine Gael loyalists are outside the cities and would follow their leader, like lemmings, over a cliff.
- Fine Gael seem to be hell bent on the Americanisation of Irish politics; in this case contesting a referendum on two populist and, in the case of costs, complete bullshit, points. I’m delighted to see these tactics which we deride from the outside when looking at America have failed miserably here this time around.
Anyway, it’s a great result and the right result. I look forward to reform.
Because I was asked, I will be voting YES in the referendum to establish a Court of Appeal. Primarily because there is now a four year waiting list for appeals to the Supreme Court andÂ justice delayed is justice denied.
What’s it all about? Succinctly: There are two main streams of law in Ireland – criminal and civil. We already have a Court of Criminal Appeal but we have no court of civil appeal. Because of this, all civil law appeals go directly to the Supreme Court resulting in a backlog of 4 years. There are only eight judges on the Supreme Court and they generally sit in minimum groups of three. As you might imagine, the waiting list is not shrinking but growing considerably. This referendum seeks to establish a Court of Appeal for civil cases (and also allowing the Supreme Court to reassign existing cases on the waiting list to this new court as it sees fit). This new court will sit between the High Court and the Supreme Court.
Allow me to elaborate on some of the reasons why I am in favor of this referendum as well dispel some myths and untruths:
- Justice delayed is justice denied.Â Four years is an agonisingly long time for anyone seeking justice. Especially if they are at the wrong end of a bad ruling. This waiting period is also growing and not shrinking. For this reason alone, I’d vote in favor of this referendum.
- Similarly, there areÂ commercialÂ and human rights issues. Long waiting listsÂ are a commercial issue for businesses seeking remedies which (a) may work against us by businesses evaluating locations for foreign direct investment; and (b) may cause businesses to close down while waiting for a judgement. In terms of human rights, Ireland has already lost or settled a number of cases before the European Court of Human Rights due to the inordinate delay of getting decisions in our existing system.
- At least it’s a solution.Â Perhaps it’s neither the best nor the cheapest, but it is a solution. Personally, I think it’s a good one. Others are arguing that we can battle the waiting list with additional Supreme Court judges and moreÂ efficiencies. Perhaps; but these were and / or could have been tackled last year, the year before or even the year before that. If wishes were horses and all that… But they aren’t and these other options were either not tried or were sufficiently ineffective and we now have a four year waiting list. So, let’s take our collective heads out of the imaginary world of what ifs and give this solution a chance.
- It’s not just about the waiting list.Â Ireland is quite unusual in that it doesn’t have a court of civil appeal. Supreme Court’s should tackle issues of national importance and constitutionality. These should be tackled in front of multiple judges (typically 3, 5 and 7 in Ireland) in a very considered and unrushed manner – because these are issues of nationalÂ importance. Promoting more judges to the Supreme Court so that it can handle the increased demand of appeals of lost preliminary High Court motions is quite ridiculous and it undervalues its purpose.
- Isn’t it right that we have a Court of Criminal Appeal?Â We have one. All you ‘no’ campaigners realise that, right? If you wish to appeal a criminal case, you goto the Court of Criminal Appeal (which is made up on one Supreme Court judge and two High Court judges). The Supreme Court hears at most a handful of appeals from the Court of Criminal Appeal – and those that it does are deemed of national or constitutional importance (i.e. it hears the right cases from this court). But, in a strange anomaly, some seem to think we don’t need the equivalent for civil cases. It’s also important to note that this or a future Government can, through legislation, incorporate the Court of Criminal Appeal into the new Court of Appeal (a good idea in my opinion).
- Yes, it is going to cost money and, yes, it will create about ten new judges. But, you know what, doing things the right way isn’t cheap or free.
- On bullshit comparisons: (pardon my French) but some people keep banging on about equivalent numbers in the same court system in the UK versus population sizes. Beware of the Internet, and beware of so called facts. Every comparison I have read so far has compared the number of judges in the respective Supreme and High Courts – completely excluding the UK’s Crown Court – which is a function our High Court incorporates (i.e. the Criminal Courts, Central Criminal Court and Special Criminal Court). I’m not going to offer any numbers here – because, quite frankly, who cares? That’s Another Country. And they can run their court systems as they please in accordance with the demands on those courts and the level of litigation in that country. We, likewise, need to run (and, as it happens, establish) our own courts for our own circumstances.
For these, any many other reasons, I will be voting YES in the referendum to establish a Court of Appeal. I hope you do likewise.
The contents of this posting may be used freely in whole, part or edited without attribution. Get the message out!
There’s very little good about the Seanad in its current form; it’s been broken for a long long time. So, why save it? Here’s why:
- It can be fixed.Â A lot of trees have given their life for report after report on how to reform the Seanad. We just haven’t had a Government willing to get their hands dirty and fix it. Prof. and Senator John Crown had also published a laudable Seanad Reform Bill.
- Once it’s gone, it’s gone.Â No, this isn’t a Home Store and More ad. Do you realise the changes required to the constitution to effect abolition of the Seanad? Twenty three articles will be changed – some of them substantially. It’s easy to just abolish the SeanadÂ but can you imagine ever reintroducing it? With this many changes? It would never happen.
- This is a political stunt. Yes, it is. Enda Kenny announced his plan to abolish the Seanad in a pre-election publicity stunt. Somehow forgetting that only months previous to this, he had put forth a strong argument for retention and reform. I truly believe that if he and many of hisÂ cohortÂ of Ministers were in opposition, they’d be railing against abolition.
- It’s bad for democracy.Â I had an interesting talk with a friend who works for a NGO recently and she, if I may paraphrase her, explained thatÂ democracy itself is not the real goal but ratherÂ good democracy is. The Seanad does, or at least should, offer a different voice to the legislative process than the DÃ¡il does. It has a different membership pulled from different panels with, generally speaking, more diverse experience than the typical group of TDs. It provides checks and balances on the legislative process. Granted, the selection of many of these panels is undemocratic – but then that’s what reform is for.
- All power will be concentrated on a government controlled DÃ¡il. Ireland has no clear distinction between the executive branch of Government and the legislative branch. This, I believe, is a deficit in our democracy as the decisions of executive (the TDs that are members of the cabinet / Ministers) are often made with one eye on the next election. The Taoiseach and his Ministers make up the cabinet and they also control the DÃ¡il thorough the Government majority. Thus, they have and wield complete control of these two branches – and, as we saw in this term – have also clashed with the judicial branch on a number of occasions including a referendum to cut their salaries. This is way too much power and plainly undemocratic. You may not worry about this during a Fine Gael / Labour coalition but what, through whatever circumstances, it was Sinn Fein wielding that power? Or a vast coalition of the loony left? Or the conservative right? A reformed Seanad can and should provide a counter balance to this. Preferably with the possibility of an opposition controlled Seanad.
- We deserve a better debate.Â If the Seanad is to be abolished, we at least deserve a better debate on the real issues rather than the cynical and, frankly, pathetic campaign that Fine Gael is currently running (Save Money – Reduce Politicians). We also deserve to see Enda Kenny stand over his position in a live debate rather than running away from it.
- We deserve to hear minority and opposition voices. Even in its current form, the Seanad has always allowed minority, opposition and differing voices on a range of social, political and other issues. This is a good thing – think of the likes of Senators David Norris, Eoin Harris, John Crown, RÃ³nÃ¡n Mullen, Joe O’Toole and Feargal Quinn. I mightn’t (and certainly don’t in Mullen’s case) agree with them on various issues but the point is that the Seanad is a platform for these issues. Which is a sign of a healthy democracy. Look also at how the Government has used it position of power to silence the so calledÂ rebel TDs through the removal of speaking times.
For these, any many other reasons, I will be voting NO in the referendum to abolish Seanad Ã‰ireann. I hope you do likewise.
The contents of this posting may be used freely in whole, part or edited without attribution. Get the message out!