A time for Family

Family Fun

As we enter this festive season of which the primary focus should be family, I paused to consider the destructive impact that renewable energy legislation has had on so many families in this country, particularly those families living in the rural areas, or at least outside the city limits.

 

I deliberately withdrew from the fight against wind farms a while ago as, apart from the tiresome hate-mail, the struggle had become all-consuming to the exclusion of everything else. The biggest sufferers were my family, who just never saw me, a sad state of affairs. This is the perplexing irony, your struggle to protect those you love means never seeing them.

 

On the other hand, I was lucky to make friends with some lovely people. Kieran, Pauline, Sean, Samantha, Graham, Kath, Paddy, Gemma, Midi, Shawny, Gianni, Michael, Dave, Pat, the list goes on, and I do miss their company, and keep telling myself to get in touch, but something always comes up. Sorry guys, the social failings of an introvert! I salute you for carrying on the fight, and we really must have an end-of-year drink.

 

The destructive impact on the lives of families of people actively engaged in the struggle not only has this social element, it has a legal element as well.

Could it be argued that laws which force citizens to spend all their family- time fighting them, usually to protect their family and their homes, are unconstitutional for that reason alone ?

 

 

ARTICLE 40

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

 

The government will of course rely on the ‘as far as is practicable” clause and argue that it is doing its best not to harm citizens, but will plead justification along the lines of “if you wanna make an omelette, you gotta break some eggs”.

 

This argument might be worthy of some consideration if the public were fully consulted about suggested legislation and their reactions actually considered and allowed to affect outcomes. It does not hold water on the back of ambush planning applications, ‘consultations’ with bouncers at the door, and ‘call-in’ offices hidden at the end of a cul-de-sac in a one-horse hamlet, invisible even to SatNav.

 

The argument is now entirely discredited with the government seeking to pass new planning legislation which effectively ousts public participation.

 

“Without the ability to criticize unjust laws in powerful symbolic ways, we can’t change them. And the point of a democracy is that people should be able to convince other people to change a law.”

Marvin Ammori

 

 

ARTICLE 41

1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

 

The government will also argue that citizens do not have to go out and protest an unjust law, and therefore these are acts of voluntary self-sacrifice and cannot be laid at the door of the government. This argument might hold water if the protest was about the sugar tax on fizzy drinks as I was pissed-off that my rum-and-coke is more expensive. The argument does not hold muster regarding protests against, for example, the windfarm distance guidelines (the Minister still does not have the cojones to make Regulations, which can be enforced), where the issues are about a lot more than a dent in one’s lifestyle.

 

I can say with certainty that, if there was a choice, a lot of people doing the hard yards at the moment would rather be at home with their families. The work is exhausting and demoralising. This is not a voluntary protest, it is an act of self-defence, protecting their homes, their families, and for those who have wind farms built near their homes, their sanity.

 

“When law becomes despotic, morals are relaxed, and vice versa.”

Honore de Balzac

 

 

But these are just the musings of an idealist, who believes the role of government is to uphold the Constitution, and more particularly, that such Government is prohibited from making laws which attack the very fabric of our society, the family. Silly me.

 

I wish all of you a festive season of family, love and goodwill.

santa-claus-christmas-tree-clip-art-png-favpng-pnVUL26MKnvQWNfTGKBZ3SeBM

 

Posted in EirGrid; Insurance; Law; Cancer; EMF, EU Renewable Energy 2020 Target, Peremptory law; Directory Law; Planning and Devlopment Act of 2000 | Tagged , , , , , | 3 Comments

How Authorisation Procedures for Wind Farms are Illegally Discriminating Against Other Sources of Renewable Energy

An interesting article from Pat Swords:

 

Pat Swords for blog

 

1.1   Background

There is now in 2019 approximately 3,700 MW of wind energy installed in the Republic of Ireland with an additional 1,300 MW installed in N. Ireland. As can be seen from the Figure 1 below, for extended periods there is little or no wind power output, and then when a low pressure system moves in, the wind turbines all rush on to the grid at the same time.

 

Figure 1 Pat

Figure 1: All island electricity demand and wind energy output for week 7th Jan to 13th Jan 2019 (Eirgrid Data)

 

This is also clearly demonstrated in Figure 2 overleaf showing electricity demand and wind power output from early September 2019 to early October 2019. For large periods of the time, there was simply little or no wind energy, which when it was available generally rushed on to the grid for a short period, as a low pressure system moved through. During these periods of peak output, the wind energy output was at times nearly equal to the troughs occurring in system demand, i.e. each night time period.

 

 

 

Figure 2 Pat

Figure 2: All Ireland electricity demand and wind energy output for period 8/9/2019 to 7/10/2019

 

1.2    Impact of Intermittent Wind Energy

This irregular supply of wind energy causes huge problems with the existing generators on the grid, as they have to reduce their output or even cease generating for the period in which the wind energy rushes on to the grid, a procedure called curtailment. The “Impact of Wind Power Generation In Ireland on the Operation of Conventional Plant and the Economic Implications”, published in 2004 by ESB National Grid[1], was written at a time when there was an indicative target being considered by the EU that 13.2% of Ireland’s primary electricity would come from renewable sources by 2010. Currently in 2019 the percentage of electricity in Ireland, which comes from wind energy is reported as 30%. As that 2004 report points out, increasing the percentage of highly variable and intermittent wind energy on the grid cause conventional generators to operate in an increasingly inefficient stop / start manner.

 

  • The adverse effect of wind on thermal plant increases as the wind energy penetration rises.  Plant operates less efficiently and with increasing volatility.

 

This increases costs and reduces the effective emissions savings. An analogy can be to consider conventional generators as like vehicles now driving in a congested urban environment, with frequent stop / starts and acceleration and deceleration to compensate for the highly intermittent and variable wind energy input, while previously they were operating on a steady load like driving on the motorway.

 

Indeed, this is the reason why the simplistic carbon saving calculations completed by wind farm developers and claims made by the Irish state, such as in its National Renewable Energy Action Plan progress reports;[2] do not reflect actual real world emission savings. While a MW of electricity generated by wind energy, in the limited periods when it is available, will replace a MW of electricity, which would have otherwise have been generated primarily by fossil fuelled thermal plants, it does not displace the emissions associated with otherwise generating a MW of electricity in a thermal plant. This is because of the intermittent wind energy input to the grid, those thermal plant are now operating in a more inefficient stop start manner with increased emissions per unit of electricity generated. .

 

As that 2004 ESB report went on to conclude:

 

  • The EU target for Ireland, from all renewable sources, is 13.2%. Therefore it can be estimated that, in the long term, using WPG [Wind Power Generation] to comply with the EU target will increase electricity generation costs by 15% (€196m as a percentage of €1.28bn).  This translates to a CO2 abatement cost in excess of €120/tonne.

 

  • The cost of CO2 abatement arising from using large levels of wind energy penetration appears high relative to other alternatives.

 

In 2019 we have reached a 30% input of wind energy to the grid (penetration), which is far in excess of the figure being considered above in 2004. As thermal plant inefficiencies increase as more wind energy is added to the grid, the relative abatement cost highlighted above is a significant underestimation of the situation pertaining in 2019.

 

1.3   Economic Cost of Carbon Reduction with Different Renewable Energy Sources

 

Furthermore, as the renewable energy programme has proceeded in Ireland without any form of supporting analysis, there has never been a proper economic assessment of the cost of reducing carbon emissions, using wind energy or any of the other ten sources of renewable energy listed in renewable energy Directive 2009/28/EC.[3] A Directive which defines:

 

  • ‘energy from renewable sources’ means energy from renewable non-fossil sources, namely wind, solar, aerothermal, geothermal, hydrothermal and ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas and biogases;

 

Many of these eleven different sources of renewable energy are of a diffuse nature and more suited to being applied for heat energy rather than the generation of electricity. An example of this being the use of solar energy for water heating, which is a simple technology approach, such as circulating water through evacuated glass tubes.

 

  • Typical well-installed systems provide up to 60% of hot water demand over 12 months.[4]

 

The cost effectiveness of this approach can be determined from the fact that such solar hot water heating installations were in use even before grants for their installation became available. As could also be said in relation to biomass (wood based) heating systems and aerothermal and geothermal systems for space heating. If we consider a Waste to Energy plant, the municipal waste is combusted at a minimum temperature of 850 ⁰C producing in the boiler high pressure steam for electricity generation and hot water for use in district heating. Some 50% of the waste is of biogenic origin (biomass) and therefore 50% of energy produced is from a renewable source.

 

If this waste had instead gone to landfill, the biogenic fraction would have rotted and produced methane, which is a global warming gas with a Global Warming Potential (GWP) of 28 – 36 over 100 years.[5] In other words it is some 28 to 36 times more potent than carbon dioxide. While the landfill gas collection system would have captured some of this methane for combustion in gas engines, figures show that of the order of 40% is directly released to atmosphere.[6] In a Waste to Energy plant, the heat and mass balance shows 810 kWh of electricity produced per tonne of Municipal Solid Waste combusted with about 0.72 kg biogenic CO2 and 0.53 kg fossil CO2 per kWh of direct emissions.[7]

 

In the same timeframe that the Irish report was stating that utilising a low penetration of wind energy to reduce a tonne of CO2 emissions was €120, it was being reported that the cost to avoid a tonne of CO2 utilising Waste to Energy technology was about €43, whereas the costs to avoid 1 tonne of CO2 with (other) biomass was €80.[8] Indeed, if district heating systems are used in addition to solely electrical outputs, then this Waste to Energy CO2 avoidance cost reduces to the range €7 to €20.

 

1.4   Adverse Impact on other Renewable Generators

The capacity factor is the actual power generated divided by the rated peak design power. The capacity factor for the Indaver Waste to Energy plant in Co. Meath and the Irish wind energy sector is show in Figure 3 overleaf for the period of the 12th to 13th January 2019. This Indaver Waste to Energy plant treats some 200,000 tonnes of Municipal Solid Waste per annum, with an electricity output of 18 MW, which was until recently a continuous output, with over 50% being classified as renewable.[9]

 

 

Figure 3 Pat

Figure 3: Wind Energy Capacity Factor and Capacity Factor of Indaver WtE for the 12thand 13th January 2019 (Data from Eirgrid)

 

Clearly a low pressure system passed through on the 12th and 13th January 2019 and as a result considerable wind energy was inputted to the grid, such that other generators had to be taken off line and kept on hot standby ready to ramp up, when the inevitable happened and the wind dropped. This can be clearly seen in Figure 3, where the Indaver Waste to Energy plant had to be taken off the grid for extended periods. However, such a waste to energy plant can’t be simply throttled back, the waste is still arriving and the furnace temperature has to be kept at a minimum of 850 ⁰C to avoid dioxin formation in the off-gases. Instead the steam generated simply has to be dumped into the plant’s cooling system rather than be used to generate steam. Not only is this a loss of revenue to the Waste to Energy plant operator, but it is reflected in resulting higher costs for waste disposal of those using that facility.

 

Indeed, an examination of pages 43 and 44 of 55 of Indaver’s Annual Environmental Report for 2018 gives a curtailment figure of 6,550 MWh.[10] Dublin Waste to Energy was also curtailed in 2018 by 30,550.8 MWh representing about 7% of the electricity it generated that year for the grid. See page 10 of 28 of its 2018 Annual Environmental Report as submitted to the Environmental Protection Agency.[11]

 

In total both Irish Waste to Energy plants in 2018 curtailed 30,551 + 6,550 = 37,101 MWh of useful electricity. As the municipal waste keeps coming in and the furnaces have to be kept at a minimum of 850 ⁰C, the steam generated in the boilers has to be sent to bypass the generators and be dumped to the cooling system. In the case of Dublin Waste to Energy, this dumped heat ends up in Dublin Bay at Ringsend.

 

So what is that in real money? Iarnrod Eireann used 25,240 MWh of electricity for traction on its Dart network in 2017.[12] So the amount curtailed from the Waste to Energy plants in Ireland in 2018 to facilitate increased wind energy on the grid is 1.5 times greater than what the Dart used in 2017. As more wind energy is installed, this situation is worsening, while as has been previously pointed out, some 50% of the energy output from such waste to energy plants is classified as renewable, because the incoming waste is some 50% of biogenic origin.

 

1.5  Authorisation Procedures which are Discriminatory

The Renewable Directive 2009/28/EC, while defining some eleven different sources as renewable, also places an obligation in its Article 13 on “Administrative procedures, regulations and codes”, which requires that:

 

  • 1. Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources, and to the process of transformation of biomass into biofuels or other energy products, are proportionate and necessary.

 

  • Member States shall, in particular, take the appropriate steps to ensure that:

 

  • (d) rules governing authorisation, certification and licensing are objective, transparent, proportionate, do not discriminate between applicants and take fully into account the particularities of individual renewable energy technologies;

 

Authorisation clearly means the granting of planning permits, which is what this planning procedure entails. Furthermore, proportionality is a key aspect of EU jurisprudence, and the principle of proportionality is one of the key principles of Community law and given this pivotal status, it has been the focus of many judgments of the European Court; where the following principles have been repeatedly expounded:

 

  • “….according to settled case‑law, the principle of proportionality, which is one of the general principles of European Union law, requires that measures adopted by the European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.”[13]

 

From a legal perspective, the situation has already arisen in Ireland that the excessive granting of planning permissions and grid connections for wind farms is clearly discriminating against other renewable sources, in particular that of Waste to Energy facilities. As previously highlighted utilising a low penetration of wind energy to reduce a tonne of carbon dioxide was €120, while the cost to avoid 1 tonne of CO2 with Waste to Energy technology was about €43, whereas the costs to avoid 1 tonne of CO2 with (other) biomass was €80.  Indeed, if district heating systems are used in addition to solely electrical outputs, then this Waste to Energy CO2 avoidance cost reduces to the range €7 to €20.

 

In other words, this discrimination is clearly illegal, as it is occurring in a manner which is discriminating against a renewable energy source, which is of significant lower cost, and is therefore a clear breach of legal requirements related to proportionality. However, this discrimination has a wider impact than solely the two Waste to Energy plants installed to date in Ireland. On the 24th July 2018 the following reply was provided in the Oireachtas by the Minister for Communications, Climate Action and Environment:[14]

 

  • The Lough Ree and West Offaly plants will no longer receive support for their peat production under the PSO from the end of 2019. Both plants have been approved under the REFIT 3 scheme for PSO support for co-firing 30% of total capacity out to 2030, and it is expected that these plants will begin co-firing on biomass in 2019. These two plants require the relevant planning permission to operate beyond 2019. The Edenderry plant has been approved for 30% co-firing support out to 2030, subject to renewal of planning permission.

 

Therefore three peat fired power stations representing a total output of 370 MW of electricity, will potentially have 30% of that output originating from renewable sources. Furthermore, if one consults the Gas Networks Ireland website, then this explains:[15]

 

  • Renewable gas[16] will be available on the gas network from late in 2018 and Gas Networks Ireland aims to supply 20% of Ireland’s gas from renewables by 2030. This equates to 15% of electricity generation demand or the heating requirements of up to 1,000,000 homes[17].  EU reports have indicated that Ireland has the greatest potential for renewable gas deployment of any of the EU 27 countries[18].  It is estimated that the roll out of renewable gas in Ireland will support 6,500 jobs[19], mostly based in rural Ireland.

 

While in addition to the two existing Waste to Energy plants, additional Waste to Energy capacity is required for waste management in the South East, South and West of the Country.

 

The only conclusion one can draw from the increasing number of partly biomass fuelled power generation plants on the grid, is that if Irish authorities continue to authorise more and more wind energy in a uncoordinated manner without any proper analysis, then considerable discrimination of these other renewable energy sources will occur, as they are curtailed to facilitate the increasing peaks in wind energy output. This is a failure of transparency and proportionality and is discriminating against other renewable sources. Hence by its nature it is a fundamental breach of Article 13 of Directive 2009/28/EC on “Administrative procedures, regulations and codes”.

 

 

[1] https://docs.wind-watch.org/EirGrid-WindImpact-Main.pdf

[2] See Section 10 of the NREAP progress reports:

https://www.dccae.gov.ie/en-ie/energy/topics/Renewable-Energy/irelands-national-renewable-energy-action-plan-(nreap)/Pages/Action-Plan.aspx

[3] https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32009L0028

[4] https://www.seai.ie/sustainable-solutions/renewable-energy/solar-energy/heat-and-hot-water-from-solar/

[5] https://www.epa.gov/ghgemissions/understanding-global-warming-potentials

[6] See for example Table 4.10: https://www.epa.ie/pubs/reports/research/climate/CCRP_3_Timoney_MethaneLandfill_web.pdf

[7]  Consonni et al 2005

https://pdfs.semanticscholar.org/4bc0/99953f62973e77f7a29474afcef4bd4636eb.pdf

http://www.seas.columbia.edu/earth/wtert/newwtert/meetings/meet2005/WTERTAnnualMeeting/presentations/S.%20Consonni.pdf

[8] https://www.powerengineeringint.com/articles/print/volume-15/issue-5/features/waste-to-energy-energy-no-time-to-waste.html   and Section 7.7 of:

https://www.umwelt.nrw.de/fileadmin/redaktion/PDFs/umwelt/munlv_klimaschutz_endbericht.pdf

[9] https://www.indaver.com/ie-en/services-for-municipal-waste/municipal-services-in-ireland/treatment-of-msw-in-meath/

[10] http://www.epa.ie/licences/lic_eDMS/090151b2806e45ad.pdf

[11] http://www.epa.ie/licences/lic_eDMS/090151b2806e349f.pdf

[12] See page 8: http://www.irishrail.ie/media/2017-iarnrod-eireann-annual-report.pdf

[13] For example ECJ, 07.03.2013, T-370/11, Poland v Commission

http://curia.europa.eu/juris/documents.jsf?num=T-370/11

[14] https://www.oireachtas.ie/en/debates/question/2018-07-24/2126/

[15] https://www.gasnetworks.ie/corporate/news/active-news-articles/natural-gas-generation-hits-all-time-high/

[16] Renewable gas is made using grass and other natural feedstocks using a process called anaerobic digestion.

[17] 1,000,000 homes is based on typical domestic gas consumption per CRU decision paper: https://www.cru.ie/wp-content/uploads/2017/07/CER17042-Review-of-Typical-Consumption-Figures-Decision-Paper-1.pdf  and is therefore based on total gas consumption.

[18] Optimal use of biogas from waste streams.  An assessment of the potential of biogas from digestion in the EU beyond 2020 (European Commission)

[19] IrBEA – Irish BioEnergy Association.

Posted in EU Renewable Energy 2020 Target, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Pat Swords | Tagged , , , , , , , , | 2 Comments

The attack on Human Rights in Turkey

Symbolbild Türkei Einschränkung der Meinungsfreiheit (picture alliance/dpa/S. Suna/epa)

Our friends in Turkey continue to try and protect their homes and heritage sites from a rampant wind industry supported by a ruthless government and some highly questionable court decisions. Despite these obstacles, the community continues to pursue what many of us would consider to be our fundamental rights.

Show your support here

 

 

Posted in Arsin Demir, Çalık Holding; Turkey; EU; renewables, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, Legal Costs; Access to Justice; Courts, lobbying; democracy; political process; general election, Turkey; ABK Çeşme RES Enerji Elektrik Üretim A.Ş, Wind Turbines: Esen Fatma Kabadayi Whiting | Tagged , , , , , , , | 2 Comments

QED

Renewables Threaten German Economy & Energy Supply, McKinsey Warns In New Report

To stabilize the electricity grid and avoid becoming too dependent on imported natural gas, Germany is expanding coal mining to the Hambach forest, where environmental activists were arrested last September.

 

new report by consulting giant McKinsey finds that Germany’s Energiewende, or energy transition to renewables, poses a significant threat to the nation’s economy and energy supply.

One of Germany’s largest newspapers, Die Weltsummarized the findings of the McKinsey report in a single word: “disastrous.”

“Problems are manifesting in all three dimensions of the energy industry triangle: climate protection, the security of supply and economic efficiency,” writes McKinsey.

In 2018, Germany produced 866 million metric tons of carbon dioxide, a far cry from its goal of 750 million tonnes by 2020.

Thanks to a slightly warmer winter, emissions in Germany went down slightly in 2018, but not enough to change the overall trend. “If emissions reductions continue at the same pace as they did over the past decade, then CO2 targets for 2020 will only be reached eight years later, and 2030 targets will not be reached until 2046.”

Germany has failed to even come close to reducing its primary energy consumption to levels it hoped. McKinsey says Germany is just 39% toward its goal for primary energy reduction.

 

 

https://www.forbes.com/sites/michaelshellenberger/2019/09/05/renewables-threaten-german-economy-energy-supply-mckinsey-warns-in-new-report/#6a8917bc8e48

Posted in Academic Research; Peer-Review Process; Medical Journals, An Bord Pleanala; appeal; interested parties, Çalık Holding; Turkey; EU; renewables, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, GDPR; Data Protection; Individual Rights, Green Party; Ireland; Eamonn Ryan; Cormac Manning, Irish Farmers Association; IFA; wind farm contracts, Kilvinane Wind Farm Ltd; substituted consent, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29 | Tagged , , , , , , , , , , , , | 1 Comment

Ireland in trouble with Aarhus – again

windaware ireland

Many thanks to Wind Aware Ireland for this very informative update:

Updates.

30th August, 2019

A panel of legal experts has found that Irish planning law is non-compliant with requirements under an international convention to allow the public to participate in the decision-making process for projects that may significantly affect the environment.

The landmark finding from the Aarhus Convention Compliance Committee (ACCC) concerns Section 42(1) of the Planning and Development Act (PDA) that allows for planning permission to be extended beyond its original expiry date without any public participation in the renewal process.

The Aarhus Convention is an international agreement that gives a number of rights of the public with regard to the environment, including the right to participate in certain environmental decision-making. The Convention entered into force in 2001 and was ratified by the EU in 2005. Ireland became the last individual EU state to ratify the Convention in June 2012.

Section 42 allows Local Authorities to essentially rubber stamp time extensions to valid planning permission without any further input from the public. There is effectively no discretion to refuse the extension so long as basic technical requirements are met. There is no opportunity for the public or expert public bodies to provide their input.

The requirement in the Convention effectively recognises the need to allow the public to have a voice in light of the changed timeframes and environmental conditions since the original planning decision was made by the Local Authority.

Thus, in its decision released this week, the Committee found that Section 42 is not compliant with the Aarhus Convention as it does not comply with the obligation to provide for effective public participation rights. This is the first finding by the Committee that Ireland is not compliant with the Convention.

The Committee recommended that Ireland now takes the necessary legislative measures to ensure that permits for activities that may impact on the environment cannot be extended without first giving the public an opportunity to participate in the decision making process.

 

Case Background

The case that led to the ACCC’s decision was brought in November 2013 by Kieran Cummins of Enfield, Co Meath concerning planning consent granted to John Keegan Quarries by Meath County Council in 1998 to develop a quarry on 8.5 hectares in Trammon.

On 30 May 2013, the developer submitted applications to extend the duration of three permits granted to it in 1998, 2004 and 2010 before expiry in August 2013. The public was not notified of these applications.

According to Mr Cummins, he only became aware of the extension granted while searching the website of the planning authority for an unrelated file in September 2013. As there was no means of appealing the matter to An Bord Pleanála under Irish planning law, the only means to challenge the decision is via a judicial review challenge through the courts.

The judicial review process is a timely and costly route that most citizens cannot offer to take. In addition, Section 42 challenges are effectively limited to only technical procedural matters.

The ACCC findings say that it is “obvious” that the judicial review process, as the only available domestic legal remedy in such cases, “does not provide an effective and sufficient means of redress” for the public to challenge permit extensions.

The case was the first brought before the ACCC since Ireland ratified the Convention. A further eight cases have since been brought against Ireland. Two were deemed inadmissible, and the rest are still in process.

 

Section 42 criticism

Section 42 of the PDA originally only allowed for an extension of planning permission if substantial works had already commenced on the site.

Following the economic crash when many developers had to abandon projects, an amendment (often referred to as the NAMA clause) was introduced that allows for extension in cases where no work has commenced for economic or technical reasons.

In both circumstances, there is no opportunity for the public to make submissions in the extension decision-making process, even where the project may have an impact on the environment.

Critics have called the process a box-ticking and rubber stamping administrative exercise as planning authorities have no discretion to refuse the request so long as the development meets basic technical requirements.

Critics also argue that this is a flawed process as the planning authority does not have to factor into its decision-making process changes to the environment over the five or ten year period.

Such changes may mean that the impact of the project is significantly different from those considered in the original application process and might now require new management and mitigation plans in order to ensure that that there is no significant impact on the environment.

In addition, the planning authority is not even in a position to attach new conditions to the permission except in relation to financial security issues linked to the completion of the project. They cannot add new conditions that take account of changes in regulations, standards or environmental circumstances over the years since the original permission was granted.

 

 

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty, The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information | Tagged , , , , | 1 Comment

What! More wind turbines? Are you serious?

wind-money

It is now widely recognised that wind turbines are inefficient, costly, environmentally unfriendly, and harmful to humans and other animals. For those who do not particularly care about these things, but are concerned about their personal finances, they are also very hard on the consumer’s pocket, as it is the consumer that is subsidising an industry whose very business model spells financial loss.

Let’s break that down.

inefficient

Inefficient:

“Here’s a quiz; no conferring. To the nearest whole number, what percentage of the world’s energy consumption was supplied by wind power in 2014, the last year for which there are reliable figures? Was it 20 per cent, 10 per cent or 5 per cent? None of the above: it was 0 per cent. That is to say, to the nearest whole number, there is still no wind power on Earth.

Even put together, wind and photovoltaic solar are supplying less than 1 per cent of global energy demand. From the International Energy Agency’s 2016 Key Renewables Trends, we can see that wind provided 0.46 per cent of global energy consumption in 2014, and solar and tide combined provided 0.35 per cent. Remember this is total energy, not just electricity, which is less than a fifth of all final energy, the rest being the solid, gaseous, and liquid fuels that do the heavy lifting for heat, transport and industry.”

(The Spectator, 13/05/2017).

print money

Costly:

“I worked on advanced wind turbine projects in the 1990’s developing variable speed generators to improve electronic efficiency and utilizing improved airfoil design for capturing energy from lower wind velocity.

The true answer is clouded by several factors. Federal and local tax incentive subsidies obscure the real cost. Maintenance is an expensive consideration that often is not considered in operating expenses. Interest paid on financing projects must also be included. Wind turbines, especially large units, are complex structures that require significant investment to build and operate. They are prone to failures and costly to repair. Downtime for routine servicing and inspections produces no electricity and winds are not always reliable consistent.

Turbine assemblies have a useful lifespan of about twenty years as mechanical and electrical components wear out over time and ordinary use, even under the best operating conditions.

The “carbon footprint” of wind turbines, figuring the manufacturing process and all the materials and manpower, transportation, other infrastructure, such as transmission wiring from remote locations, and site preparations involved in erecting and commissioning the units adds up to a real number that is seldom mentioned. Typical large units can be as tall as 400 feet and weigh up to 300 tons.

The actual pay-back of this “green technology” in terms of replacing fossil fuels and overall environmental benefit, including monetary outlay, is probably in decades rather than years.”

(John Rowen, former Aerospace Engineering Specialist/Technician at General Electric (1980-1995) -20/03/2016).

birds turbines

Environmentally unfriendly:

“As for resource consumption and environmental impacts, the direct effects of wind turbines — killing birds and bats, sinking concrete foundations deep into wild lands — is bad enough. But out of sight and out of mind is the dirty pollution generated in Inner Mongolia by the mining of rare-earth metals for the magnets in the turbines. This generates toxic and radioactive waste on an epic scale, which is why the phrase ‘clean energy’ is such a sick joke and ministers should be ashamed every time it passes their lips.

It gets worse. Wind turbines, apart from the fibreglass blades, are made mostly of steel, with concrete bases. They need about 200 times as much material per unit of capacity as a modern combined cycle gas turbine. Steel is made with coal, not just to provide the heat for smelting ore, but to supply the carbon in the alloy. Cement is also often made using coal. The machinery of ‘clean’ renewables is the output of the fossil fuel economy, and largely the coal economy.

A two-megawatt wind turbine weighs about 250 tonnes, including the tower, nacelle, rotor and blades. Globally, it takes about half a tonne of coal to make a tonne of steel. Add another 25 tonnes of coal for making the cement and you’re talking 150 tonnes of coal per turbine. Now if we are to build 350,000 wind turbines a year (or a smaller number of bigger ones), just to keep up with increasing energy demand, that will require 50 million tonnes of coal a year. That’s about half the EU’s hard coal–mining output.”

(The Spectator, 13/05/2017).

noisy turbines

Harmful to man and beast:

“Health studies into the effect of wind turbines on those living in their vicinity must be explored to prevent potential health problems, a conference on public health heard yesterday.

Alun Evans, Professor Emeritus of Epidemiology in Queens University, Belfast was speaking at the 2014 Summer Scientific Meeting at the Royal College of Physicians the second day of which was held in Dublin yesterday.

He said it was “quite possible” if the Dublin array, a proposed €2 billion project which would see 145 wind turbines constructed 10km off the east coast, goes ahead that up to two million people could be exposed to infrasound, a “sizeable minority” of who could potentially experience sleep disturbance.

Prof Evans said there was “clear evidence” that, as the size of wind turbines had increased, so has the infrasound and low frequency sounds generated by them and that they were now emitting “serious amounts of noise”.

“When you measure them with the correct filters you find they are producing noise levels which are far above what’s supposed to be permitted,” he said.

He said while many people are not affected, that others could experience sleep disturbance, adding this in turn leads to increased blood pressure which he said is a major risk factor for cardiovascular disease.”

(Irish Times, 23/05/2014)

 

“Cellular Mechanotransduction is the mechanism by which cells convert mechanical signals into biochemical responses. Based on the mechanical effects on cells it was proposed in this research project that the ground vibrations were responsible for a increased bone growth which was not accompanied by the muscle-tendon unit growth leading to the development of these flexural deformities.”

(The Lusitano Project, Faculty of Veterinary Medicine of Lisbon, 2013).

wind energy not free

Affecting your pocket:

Germany, once the European leader in the production and subsidising of wind farms, is rapidly abandoning this position, as the German public is now in open revolt, both over the physical impact of the monster turbines, and the ever increasing cost of electricity as a result of ever increasing subsidies.

“Several thousand wind turbines in Germany are likely to be closed down in the next decade because they will no longer receive any subsidies. “If electricity prices do not rise over the next decade, only a few plants will survive on the market without subsidies,” says an analysis by the Berlin-based consulting firm Energy Brainpool. This assessment is shared by most professionals. “In any case, by 2020, the shutdown of existing facilities is to be expected to a greater or lesser extent,” an article by several economists of the Helmholtz Center for Environmental Research in Leipzig concludes. “

(Translated from the German. ‘Ende der Förderung: Alte Windräder müssen bald vom Netz’; zdf.de-31/10/2017).

enviro unfriendly

I have deliberately sought older citations to show that this information has been in the public domain for a long time. In other words, the Irish government is well aware of this information – it is freely available. Whilst other European governments: Germany, Finland and Sweden in particular (I mention these three as they were at the vanguard of European wind farm building a decade ago) have dramatically reduced and even reversed their wind farm building, the Irish government continues to fully support the building of more windfarms, as evidenced by the slew of planning applications across the country.

This head-in-the-sand mentality is either as a result of stupidity, or corruption. In other words, our rulers are either acting on false or no information; or payments have been made, promises must be kept, and directorships for retired ministers are still the name of the game. You decide.

The Committee of Public Accounts (PAC) is “a standing committee of Dáil Éireann which focuses on ensuring public services are run efficiently and achieve value for money.” (https://www.oireachtas.ie; accessed 15/08/2019). Perhaps the PAC should investigate the subsidy scam?

conclusion

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Autism : A colourful history

This gallery contains 7 photos.

Originally posted on From the Inside:
This morning, I found a handful of photographs of our Ian from many years ago.  I was looking for something completely different, of course.  That is the way of my life.  The minute I…

Gallery | Leave a comment

The final stages of capitalism

Illustration

In Das Kapital, (my translation) Marx describes the final stages of capitalism, literally along the lines of ‘capitalism will eat itself’:

 

“The final stages of capitalism will be marked by global capital being unable to expand and generate profits at former levels. Capitalists will begin to consume the government along with the physical and social structures that sustained them. Democracy, social welfare, electoral participation, the common good and investment in public transportation, roads, bridges, utilities, industry, education, ecosystem protection and health care will be sacrificed to feed the mania for short-term profit. These assaults will destroy the host.”

 

Let’s break that down and apply the mentioned elements to contemporary Ireland under a Fine Gael government:

 

“global capital being unable to expand and generate profits at former levels”

Apple is granted planning permission by Galway City Council despite admitting that the proposed data centre will “consume more electricity than Dublin”.

https://www.irishcentral.com/business/technology/apple-told-to-reveal-why-they-are-building-new-massive-plant-in-secret-area-in-ireland

 

As a result of intense publicity, and despite winning their Supreme Court appeal, Apple abandons its plans to build the ‘super data centre’.

https://www.irishtimes.com/business/technology/supreme-court-dismisses-residents-appeal-over-apple-s-athenry-data-centre-1.3856972

 

But was the withdrawal due to publicity, or was it a case that Apple did not need the data centre anymore?

https://www.equinix.ie/resources/analyst…/gartner-emerging-digital-infrastructures/

 

Capitalists will begin to consume the government along with the physical and social structures that sustained them.

During its (almost) ten years in government, Fine Gael have consistently sold off public assets, usually with the public purse coming off second-best and the buyer making a killing:

https://www.thejournal.ie/state-assets/news/

 

 

Democracy, social welfare, electoral participation, the common good and investment in public transportation, roads, bridges, utilities, industry, education, ecosystem protection and health care will be sacrificed to feed the mania for short-term profit.

A small selection of examples indicating the ever widening chasm between the “have it all’s” and the “have nothing’s”.

granny

https://www.irishexaminer.com/breakingnews/ireland/taoiseach-denies-budget-intended-to-safeguard-fine-gael-government-874219.html

 

https://www.irishtimes.com/news/health/thousands-turn-out-for-cardiac-care-upgrade-in-waterford-1.3764222

 

https://www.oireachtas.ie/en/debates/debate/dail/2017-11-22/28/

 

 

https://www.focusireland.ie/

Image result for homelessness in ireland

 

The latest attack on democracy is Fine Gael’s plan to “streamline” planning applications; i.e. crush any public objectors/opposition.

 

https://www.finegael.ie/new-laws-examined-data-centre-planning-breen/

 

 

“These assaults will destroy the host.”

Image result for revolution ireland

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Plain English please!

angry girl

“It is important to remember why our statutes should be framed in such a way as to be clearly comprehensible to those affected by them. It is an aspect of the Rule of Law. People who live under the Rule of Law are entitled to claim that the law should be intelligible. A society whose regulations are incomprehensible lives with the Rule of Lottery, not the Rule of Law”.

(Lord Simon of Glaisdale).

 

Why is it necessary for lawyers to speak gibberish? The official word for legal language is ‘legalese’, but gibberish is a more accurate description.

 

An elderly lady asked for my help recently. It turned out that her legal problem was a dispute with her landlord about his raising the rent, despite her understanding that the rent would not be increased until 2020. She had gone to a solicitor for a number of consultations and finally the solicitor had written her a letter, the primary paragraph of which read thus:

“In the event that you are not in agreement with respect to the amount of rent due and payable at that point in time there is a provision in the abovementioned contract which provides for the submission of the dispute to an arbitrator who shall hear and determine the dispute in accordance with the said contract.”

She did not understand what the letter meant but did not want to ask the solicitor to explain it as that would mean another consultation and another fee. I explained that what the letter said was:
‘If you do not agree on the amount of rent that your landlord demands, the contract says that the dispute must be decided at arbitration.’
I also had to explain what an arbitration was.

.

Why could the solicitor not use plain English?

.

Our statutory law is no better. My favourite is this definition from the Road Traffic Act of 1961, which says that a “pedestrian-controlled mechanically propelled vehicle” is a

“mechanically propelled vehicle which is neither intended nor adapted for use for carrying the driver or a passenger, or which is intended or adapted so that there are alternative methods of driving it, namely, by a person carried on it or by a pedestrian, except during a period during which it is driven while carrying the driver or a passenger”.

One needs to read that definition carefully and often. What it seems to be saying is that electric shopping baskets are not covered by the Act, whilst motorised wheelchairs are, especially when they are used to carry passengers, except perhaps when they are motionless. If you work it out, let me know.

 

Another favourite of mine is Section 12 of the Domestic Violence Act of 1996:

“An appeal from a safety order or a barring order shall, if the court that made the order or the court to which the appeal is brought so determines (but not otherwise), stay the operation of the order on such terms (if any) as may be imposed by the court making the determination.”

My reading of this is that the order is only stopped by an appeal if the court says so, and not automatically. Again, let me know if you read it differently.

 

If a society labelling itself as a democracy claims to be governed by the rule of law as one of the principal pillars of that democracy, it stands to reason that the law should be capable of being understood and obeyed by the majority of the people governed by that law.  If, however, the law is such an unintelligible mishmash that most people have to rely on the legal profession to explain the meaning and impact of the law when it invades all aspects of their lives, are we really a democracy?

 

Article 40 of our Constitution orders the Government to make laws that “defend and vindicate the personal rights of the citizen”. Has this constitutional duty been fulfilled when the citizen cannot understand the laws in the first place?

 

Similarly, s.5 of the Interpretation Act 2005 tells us that when interpreting a provision of any Act that is “obscure or ambiguous”, the provision shall be interpreted to “reflect the plain intention” of the Oireachtas.

 

And which ‘plain intention’ would that be? Is this not a case of a dog chasing its own tail?

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, lobbying; democracy; political process; general election | Tagged , | 3 Comments

Hate Speech

bullets

 

What is hate speech?

Hate speech, as defined by the No Hate Speech Movement Ireland, covers all forms of expression which spread, incite, promote or attempt to justify any form of hatred, stereotyping or discrimination based on intolerance.

This includes, but is not limited to, intolerance of people based on their ethnic and cultural backgrounds, religious belief, disability and health, sexual orientation and gender identity.  Hate speech also includes sexism, misogyny, aggressive nationalism, and all forms of threatening and/or abusive language based on an identifiable characteristic of a person.

 

Why is it important to make hate speech illegal?

One of the positive aspects of law is that it can have an educating effect and get people to think about some of their attitudes and habits. The plastic bag levy gets people to reuse their plastic bags, not because they necessarily care for the environment, but because it saves them fifteen cents. This becomes a habit and suddenly that person is contributing to a cleaner environment.

Hate crime legislation, admittedly over a long time, can shape the attitudes of a society when it comes to showing tolerance to those who are different from us. The punishment of hate crime offenders as ‘hate offenders’ offers an important public forum of censure (like the stocks, flogging post and gallows that used to be in the town square) and denunciation of the offender’s prejudice. This in turn creates a social climate that will hopefully impact on future generations until tolerance becomes a societal norm.

 

What is the position in Ireland?

There is no specialist hate crime legislation in Ireland. The Prohibition of Incitement to Hatred Act 1989 contains the following definition:

“hatred” means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation”.

Section 2 says it shall be an offence for a person:

 (a) to publish or distribute written material,

(b) to use words, behave or display written material—

(i) in any place other than inside a private residence, or

(ii) inside a private residence so that the words, behaviour or material are                   heard or seen by persons outside the residence,  or

(c) to distribute, show or play a recording of visual images or sounds,

if the written material, words, behaviour, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.

 

In other words, if you keep your hatred within the four walls of your home (and teach your children at home, rather than in the park), you are OK.  Just don’t let anyone hear you.

 

The Irish Council of Civil Liberties (ICCL), in their report, The Lifecycle of a Hate Crime: Country Report for Ireland, tell us that Ireland has one of the highest rates of hate crime against people of African background and transgender people in the EU, but has no laws to address it. They state that Ireland is “seriously deficient” when it comes to addressing hate crime in the state. This is despite Ireland being significantly above the EU average when it came to people from certain groups reporting having been subjected to hate crimes.

 

A separate report published in December of last year by the EU Fundamental Rights Agency (FRA)  found that 21% of people surveyed from a sub-Saharan African background experienced six or more physical attacks due to their ethnic or immigrant background in the five years preceding the survey.

This compared with an EU group average of 9% – and made Ireland the highest ranking in this area.

In relation to transgender rights, a 2014 FRA study found that Ireland recorded the second highest rate of hate-motivated violence against transgender people in Europe.

A total of 13% of trans people surveyed reported having been physically or sexually assaulted or threatened with violence, in attacks either wholly or partly motivated by transphobia, in the 12 months prior to the survey.

 

 

An Irish white man recently called me “a white supremacist from South Africa”. The rest of his comments are too gross to print. Whilst the ignorant conflation of “Mississippi Burning” and “The Long Walk to Freedom” provided some private amusement, that was only because I am old and cynical, and also appreciate the striking similarities between apartheid South Africa and the Deep South. Despite living in Ireland for sixteen years, and being an Irish citizen for eleven years; I still remember just how awful it was in the dark days of apartheid South Africa, and how privileged I was just because of the colour of my skin, despite my beliefs.

Somebody else, on the other hand, might take that sort of remark quite badly, and justifiably so.

 

People need to talk to each other, rather than at each other. Peace and love people, peace and love.

 

The “Oyster” is taking a sabbatical. I leave the energy debate in hands far more capable than mine. I have another blog on disability issues which you are welcome to visit.

Adios.

thatsallfolks

Posted in EirGrid; Insurance; Law; Cancer; EMF | 3 Comments

Reasons, and the reasons for giving Reasons.

reasons 2

This is a case report on the Supreme Court judgment of:

Kathleen Connelly v. An Bord Pleanala

(Clare County Council and McMahon Finn Wind Acquisitions Ltd – Notice Parties)

Full judgment here: Kathleen Connolly v ABP Supreme Court

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The Parties

Kathleen Connolly was originally the applicant. She was successful in overturning the decision of An Bord Pleanala (ABP) to reverse the refusal of planning permission by Clare County Council and grant planning permission to McMahon Finn Wind Acquisitions Limited (the developer).

ABP appealed this decision of the High Court (Barrett J.) and because of its extreme public importance, the decision “leapfrogged” to the Supreme Court, without having to first go through the Court of Appeal.

 

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The Facts

The developer applied for planning permission for six wind turbines at Coor West, Shanvogh, County Clare. Clare County Council refused permission, and the developer appealed this refusal to the ABP. As it seems to do with alarming frequency, the ABP rejected its inspector’s recommendation to refuse permission and dismissed a number of the inspector’s concerns, particularly his concern over the significant impact that the wind farm would have on Carrowmore Point to Spanish Point and Islands Special Area of Conservation and on the Mid Clare Coast Special Protection Area.

The ABP issued the developer with a Section 132 Notice, which essentially calls for a Natura Impact Statement (NIS). The developer complied with this, and the ABP thereafter concluded that it had sufficient information before it to conduct an Environmental Impact Assessment (EIA) and an Appropriate Assessment (AA), that it had done so, and that it was satisfied that it could grant planning permission.

The Arguments

In essence the High Court had found against the ABP for providing inadequate reasons for its decision. The High Court agreed with Ms Connelly that although the ABP had carried out an AA and an EIA, it had had not provided sufficient reasons for its decision granting permission.

The High Court said the following:

” … what is required of An Bord Pleanala are complete, precise and definitive findings and conclusions of a degree of specificity sufficient that a party minded to seek judicial review of such determination can turn readily to the particular observations, reasoning or conclusions in, say, a particular report or text to which reference is made, rather than simply being told that somewhere in an ocean of documentation is some stream of logic that An Bord Pleanala favours. And if it is all of a particular report or text that is being relied upon by An Bord Pleanala, so be it, but let it be identified properly, so that the findings and conclusions reached in its determination are sufficiently complete, precise and definitive as to enable

(i) an interested party meaningfully to assess the lawfulness of that determination and

(ii) a court to undertake a ready and comprehensive judicial review of same.

   (my bold)

Judge Barrett was not satisfied that the decision of the ABP met this standard and concluded that Ms. Connelly could not readily satisfy herself as to whether or not to bring a challenge against the ABP’s decision to grant consent to the developer.

The ABP argued that the High Court had set the bar too high when it came to the adequacy of reasons. In its appeal, the Board argued that if the High Court judgment was upheld, that this would have “serious consequences” for how the ABP would in future have to deal with making its decisions. In other words, the ABP was horrified at the thought of having to provide clear and precise reasons for its decisions, particularly as this would involve scientifically verifiable facts and conclusions.

It is important to point out that the High Court did not consider the Kelly judgment regarding the specific requirements which must be satisfied when it carries out an AA in order to give the Board jurisdiction to grant a permission. Judge Barrett was focused on the general duty to provide reasons:

“…when it comes to providing, again pursuant to s.l72(1J) “the main reasons and considerations on which the decision is based”, the court considers that the summary form of the text of An Bord Pleanala’s decision in this regardimparts next to no information to an affected party-here [Ms. Connelly]. She is not given a proper understanding of why the decision has been reached- and if she wants to seek a judicial review of the decision within the tight time constraints applicable, the generic form of the reasoning employed by An Bord Pleanala has the effect that she cannot properly assess matters without a detailed consideration of the underlying documentation and/or costly expert assistance.”

 

The Decision

Whilst it is true that the ABP lost its appeal, it actually lost on a very narrow point of law. The Supreme Court rejected most of the High Court’s findings. However, having said that, it was mostly on findings of fact that the High Court was reversed. The Supreme Court echoed Judge Barrett’s pronouncements on the reasons for giving reasons. It simply disagreed with his application of the law on the facts before him. This is very important, because it is the principle of law that is the precedent going forward, and now this is a Supreme Court precedent.

Giving the court’s judgment, the Chief Justice, Mr Justice Frank Clarke, said the High Court had imposed “too exacting a standard” on the Board in respect of the obligation under national law to give reasons.

The law on reasons does not require that one agree with the reasons given but only entitles an interested part to know what the reasons were. The Supreme Court was satisfied that the reasons given by the ABP were adequate to enable any interested party know why the Board had made its decision, and also to decide whether there were any grounds to challenge the decision. The Supreme Court also held that there was sufficient detail to allow any interested party to trace the materials that ABP had considered in coming to its decision.

In other words, as previously mentioned, the Supreme Court is agreeing with Judge Barrett’s (i) and (ii) quoted above, but on the facts, and disagreeing with Judge Barrett,  it is saying that the ABP satisfied the requirements of (i) and (ii).

This is not great news on a factual basis as the Supreme Court is saying that the quagmire of impenetrable levels that poses as the ABP website is sufficient for the average person to find information. In truth you need a B.Sc in Computer Science to make any sense of that infuriating site.

“Any materials can be relied on as being a source for relevant reasons subject to the important caveat that it must be reasonably clear to any interested party that the materials sought to be relied on actually provide the reasons which led to the decision concerned. In that regard, it seems to me that the trial judge has, put the matter much too far. The trial judge was· clearly correct to state that a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision. However, it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required were to be excessive then the reasons could not be said to be reasonably clear.

But it must also be noted that, in at least certain types of applications for planning consent, the issues involved may themselves be complex. The reasons put forward either in favour or against a proposed project may involve detailed scientific argument or complex calculation. If such issues arise then it will inevitably be the case that the reasons themselves may be complex and scientific. Where a party wishes to engage with the planning process in a case which raises complex issues of that type (whether at the stage of the application for permission or in the context of mounting a court challenge to a permission granted) then it is inevitable that the party concerned will also have to engage with such matters if any part of their opposition or challenge derives from such complex or scientific questions. It could form no part of a legitimate complaint, based on an argument as to reasons or the lack thereof, to suggest that the reasoning was unduly complicated or scientific if the issues which arose in the context of the grant or refusal of permission required engagement with such issues.”

What Clarke CJ seems to be saying is that if an issue is very complex in its nature, and that requires a high level of expertise or knowledge in that area, the layperson applicant cannot complain that the reasons provided by the ABP are too complicated to understand, as that is the nature of the beast. However, when the ABP relies on documentation or outside sources of reference, these must be reasonably accessible to the concerned citizen who is considering whether to challenge the ABP’s decision.

It might be argued that the Supreme Court has put too high a premium on the average person’s computer skills, and has ignored the practice of government departments in hiding documentation under multiple layers of electronic camouflage. It also says that once you find these camouflaged documents, you have to pay an expert a fortune to decipher them for you. This is hardly the scenario that was contemplated by the Aarhus Convention and I would suggest that the Supreme Court missed a golden opportunity to lay down a benchmark concerning the type and accessibility of information that should be provided to citizens seeking to exercise their legal rights.

The Supreme Court was satisfied, on the facts, that the ABP’s decision, and materials referred to in that decision, provided adequate information for any interested party to assess whether an appropriate EIA was carried out. Chief Justice Clarke reversed the High Court findings that the reasons were not adequate to demonstrate an EIA had been carried out:

“The law on reasons does not require that one agrees with the reasons given. In a challenge based on allegedly inadequate reasoning, the law only entitles an interested party to know what the reasons were. Someone reading the Decision is informed as to why the Board ultimately came to be satisfied in respect of each of the aspects of the Inspector’s report which were negative. It is no part of the function of this Court in this case to review whether there was a sustainable basis for any of the views expressed by the Board in that regard let alone to second guess the judgment of the Board as to whether it reached the correct conclusions. However, any interested party knows why the Board came to a different view from the Inspector and has attention drawn, where appropriate, to any specific materials which played an important part in persuading the Board to come to that view.

In my view, an interested party would, as a result of reading the Decision in conjunction with the Inspector’s report, together with documents (such as, for example, the Noise and Shadow Flicker Monitoring Report referred to earlier) which are either expressly referred to or by necessary inference must be taken to form part of the reasoning, have sufficient information both to inform themselves as to why the Board ultimately came to the conclusions which it did and also to consider whether there was any basis for challenging the conclusions which the Board reached. In my view, the trial judge imposed too exacting a standard in respect of reasons. Just as, at one extreme, the modern law on reasons does not permit a decision maker to engage in a simple box ticking exercise so also, at the other extreme, the law does not require a level of reasoning which goes beyond that required to afford an interested party reasonable information as to why the Decision was made and whether it can be challenged. In those circumstances I would hold that the reasoning of the Board in this case was adequate. Insofar as the High Court judgment held otherwise I would reverse the judgment.”

However, the Chief Justice noted that “different considerations” applied to the complaints about the AA which had been carried out by the Board.

Here the requirements on the ABP were far more exact and demanding. Before looking at those, the Supreme Court agreed with the High Court that no reasons could be found anywhere in the materials to suggest why the Board decided that a full AA was required. However, the High Court had also correctly held that, provided the AA met the necessary requirements, the failure to give adequate reasons for requiring a full AA was not itself sufficient to render a permission invalid.

But an AA itself goes much further than that. A key requirement of a sustainable AA must involve identifying all aspects of the development project which might affect a protected site and must identify “complete, precise and definitive” findings and conclusions that “no reasonable scientific doubt remains” about the absence of identified potential detrimental effects.

This went far beyond the issue of merely giving adequate reasons:

As noted earlier this is not, strictly speaking, a reasons issue. The issue concerns the validity of an AA decision which gives jurisdiction to the Board to grant permission. It may involve reasons, and when it does those reasons must be given in accordance with the established jurisprudence. But there must also be complete, precise and definitive findings and conclusions which sustain the ultimate conclusion. It is against that backdrop that it is necessary to assess the Decision to determine whether it can be said to contain the sort of scientific findings which the CJEU jurisprudence requires.

In that context it is important to note that there are, in reality, two different stages to the process which must take place in an appropriate sequence. First there must be an AA and an appropriate decision must be made as a result of the AA in order that the Board have jurisdiction to grant a consent. Thereafter, assuming the Board has jurisdiction, the Board may go on to consider whether it should, in all the circumstances, actually grant permission and, if so, on what conditions.

There is no reason why the analysis and conclusion of the Board in respect of both of those matters cannot be contained in the one document. That is, of course, what happened here. The Decision sets out the analysis and conclusion both in respect of the AA and also in respect of the general planning process including the EIA. Once a single document dealing with both matters contains all appropriate information (including reasons) then the fact that all matters are dealt with in a single document even though relating to what are, technically, two different decisions, creates no difficulty. I would, however, recommend that the Board take care in ensuring that there is reasonable clarity as to which parts of such a document relate to an AA and which parts relate to more general planning considerations. This is not a formal requirement and a decision of a planning authority (including the Board) will not be invalid provided that the reasonable observer would be able to understand with reasonable clarity what the Board was deciding and why. However, it might well make the task of all concerned a lot easier if the Board were to clearly distinguish, in any document recording its decision, those aspects of the document which are concerned with an AA from those which are concerned with more general planning considerations.

In any event there is no doubt but that the Decision reaches the appropriate conclusion in respect of the AA. But as already noted that is not sufficient. There must be found either in the decision itself or in other materials which clearly must be taken by express reference or by necessary inference to identify the reasons for the ultimate determination, the sort of complete, precise and definitive findings which justify that conclusion.”

(my bold)

 

On the facts the Supreme Court found that neither the ABP’s decision, nor any materials forming part of the process leading to the decision, contained the sort of “complete, precise and definitive findings” to underpin its conclusion that no reasonable scientific doubt remained concerning the absence of any identified potential detrimental effects on a protected site.

As these findings were a necessary pre-condition to the Board having jurisdiction to grant planning permission, the decision of the ABP to grant consent was invalid.

 

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Commentary

This is not new law. I wrote about this stringent requirement over three years ago. There must be complete, precise and definitive findings and conclusions which sustain the ultimate conclusion. In other words, you cannot fudge the picture and portray your opinions as fact. No, here you must have scientifically verifiable facts which ultimately can only lead to the one conclusion, which is the one you must accept, even where it does not tally with the wishes of your political masters.

The fact of the matter is that this requirement has been routinely ignored by the ABP and now it has been caught out. Hopefully it has learnt its lesson. But this is too late to reverse the multitude of very questionable decisions that the ABP has made on the back of an AA that it supposedly carried out.

Posted in An Bord Pleanala; appeal; interested parties, High Court; Judicial Review; Appeal on the merits; judicial discretion, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , | 5 Comments

Gratitude.

Truly inspirational. I wish you great success in your efforts to support a fabulous cause.

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It is the eve of our open garden weekend and there are still lots of things to tend to. There are floors to sweep, furniture to move, the café area to organize further and many other last minute preparations.

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Despite this we decided to walk around the garden for a while and take a few photos for sharing with you all here. We are so fortunate to have a place of our own; a garden full of food plants and beautiful flowers to delight us and all the wildlife that we share it with. It makes us feel tremendous gratitude.

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Many millions of people around the world are not so fortunate. They have had to flee their homes and sometimes even their countries and it is because of this we decided to open our garden and home again this year in Support of Amnesty International Ireland and their #Iwelcome Refugees…

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The Courts of Ireland – take 2

judge asleep

Many thanks indeed for the loads of helpful comments and suggestions to the first draft of a chapter I am writing which seeks to introduce the Irish legal system to people who know little or nothing about Irish law.

I have done my best to implement most of the suggestions. Some of the suggestions asking for more detail on particular topics could not be fully accommodated as this is simply an introductory chapter. It would not do if the chapter was two hundred pages and took up half the book!

I enclose the second draft. Again, comments and suggestions would be most welcome.

 

Introduction: The Hierarchy and Jurisdiction of the Courts of Ireland

Learning Outcomes

At the completion of this chapter, the reader should know and understand the following:

Ø  Core legal concepts that are often used in this book.

Ø  The difference between the criminal courts and the civil courts.

Ø The courts system in Ireland and what the different courts can and cannot do.

Ø The people that work in the courts system.

 

The contents of this book will be easier to understand if you first read this short explanation on how the court system works in Ireland and become familiar with the following concepts:

 

Hierarchy

Generally, the word ‘hierarchy’ means any system of grades or ranks, in which some are superior to others. What is meant by the hierarchy of courts is the position of the courts with reference to each other, starting at the bottom all the way to the top.

This hierarchy is very important to understand when you are comparing judgments of two different courts and they disagree with each other. The position of the court on the “pecking order” will usually determine which judgment you must follow.

There is a more detailed diagram later on in this chapter but the basic hierarchy of Irish courts from top to bottom is: Supreme Court – Court of Appeal –  High Court – Circuit Court – District Court.

 

Precedents

Previous decisions (judgments) of the superior courts (High Court; Court of Appeal; Supreme Court) which contain a legal principle which may, in a later case raising the same point of law, be referred to and which may influence the court’s decision. This is a crucial concept in our system of law, which is a common law system where our law comes from many different sources, as opposed to a codified system where everything must be written down before it becomes law.

 

Bind a court

Where a court must follow a previous decision or precedent, even if it does not agree with that decision. Lower courts are therefore ‘bound’ by the decisions of superior courts. Sometimes judges in lower courts might have a little grouse when they have to follow a judgment they do not like, but follow it they must.

 

Adversarial

The Irish legal system is predominantly adversarial, which means it is characterised by its confrontational nature. Parties directly oppose each other, and there is a “winner” and a “loser”. This is very important, as there are no “draws”: if the party bearing the burden of proof fails to win their case, they must lose.

Again this is an important concept to understand, and one that can cause confusion. Very often people cannot understand how they lost because their case seemed no worse than their opponent’s case. That is the whole point: if you bring a case to court, your case must be better than your opponent’s, or else you will lose. The same is not good enough.

A contrasting system is the inquisitorial system, where the proceedings are conducted by the presiding officer in the form of an investigation rather than a direct contest. These are found mostly in Europe, France being a well-known example.

 

 Pleadings

Formal written or printed statements delivered by litigating parties to each other, stating the allegations of fact (and sometimes their legal arguments as well) upon which the parties base their case. This ensures that nobody is caught by surprise on the day of the court hearing, as the parties have been forewarned about their opponent’s arguments and have had time to prepare a reply.

This notion of not being allowed to catch your opponent by surprise is more important in an adversarial system, where the court is not investigating, but only officiating (“refereeing”), and finally declaring a winner.

 

 Injunction

An order of the court directing a party to an action to do something (mandatory injunction) or refrain from doing something (prohibitory injunction). So for example you might get a mandatory injunction against your neighbour to replace soil he has removed along your boundary, causing it to collapse. On the other hand, you might get a prohibitory injunction against your neighbour if he tries to build something which juts onto your land. Hopefully neither of these are good examples, as you should always get on with your neighbour!

 

Burden of Proof (Onus)

The burden of proof needs to be satisfied by the person bringing the claim or laying the charge in order to be successful in that action or charge. A plaintiff in a civil action bears the onus to prove his or her claim on a balance of probabilities, whereas in criminal proceedings the State bears the onus of proving the guilt of the accused beyond a reasonable doubt.

As mentioned above, in an adversarial system where there has to be a winner and a loser, the burden of proof will determine the winner when the two sides seem to be evenly matched.

 

Indictable

An indictable offence is one which is sufficiently serious to warrant a jury trial (and heavy sentences), whereas a summary offence is one which can be heard by a judge only (often called misdemeanours in other jurisdictions) with correspondingly lighter sentences.

We do not have plea bargaining in Ireland but it might happen that a person can agree to plead guilty to a summary offence with a lighter sentence as this saves the State the time and expense of a jury trial.

 

 Acquitted

When the accused / defendant is found “not guilty” in a criminal trial.

 

Citation

A reference to an authority (for example, a reported judgment) usually in support of an argument or another judgement. For example, Gilligan v. Ireland [2013] 2 IR 745 involves the famous case of John Gilligan against Ireland. The State was represented by the Attorney General, the Minister for Justice, Equality and Defence and the Governor of Portlaoise Prison. The citation tells you that you can find the case on page 745 of the second volume of the 2013 Irish Law Reports (I.R.), as opposed to the Irish Law Reports Monthly (I.L.R.M.). You could also find this case on the internet using its electronic citation: [2013] IESC 45 (which stands for Irish Electronic Supreme Court).

Not all judgments are reported. Generally the citation for an unreported judgment will tell you the date of the decision, and the court making that decision, and perhaps the name of the judge.

 

Bar

In systems that distinguish between barristers and solicitors, the Bar generally refers to the professional collection of barristers. Many countries use the expression “Side-Bar” to refer to the professional collection of solicitors, but this does not seem to be the case in Ireland.

 

Jurisdiction

Jurisdiction refers to the extent or territory over which legal or other power extends. A decision of an Irish court would not affect an American citizen, unless that American was physically present in Ireland, because then they would be subject to Irish law. This is called “territorial jurisdiction”, and it is this type of jurisdiction that most people know.

There are however other types of jurisdiction. Substantive jurisdiction refers to the particular types of case that a court is entitled to deal with. When speaking about civil and criminal jurisdiction therefore, we are talking about what civil and criminal courts can and cannot do, and where they can and cannot do it. There are also specialised courts within these civil and criminal jurisdictions. For example, the Commercial Court is really a division of the High Court, but deals with the following types of cases:

  • Disputes of a commercial nature between commercial bodies where the value of the claim is at least €1 million;
  • Proceedings under the Arbitration Act 2010 with a value of at least €1 million;
  • Disputes concerning intellectual property;
  • Appeals from or applications for judicial review of regulatory decisions;
  • Proceedings in connection with any function of the Registrar under the Cape Town Convention or the Aircraft Protocol as defined in the International Interests in Mobile Equipment (Cape Town Convention) Act 2005;
  • Other cases a judge of the Commercial Court considers appropriate (which have included judicial review of planning permission decisions, for example).

There is also a type of jurisdiction that can best be described as “quantum jurisdiction” and this is where certain civil courts are limited from hearing cases above a certain money value and certain criminal courts from hearing certain cases or from sentencing above a certain number of years and/or the amount of a fine.

For example, the different civil courts can hear cases for compensation of certain amounts. These are:

  • in the District Court claims up to €15,000;
  • in the Circuit Court claims between €15,000 and €75,000;
  • in the High Court claims above €75,000.

Similarly, in our criminal law, for example, the following types and categories of offences must be heard by the Central Criminal Court (which is the High Court with its criminal law hat on) sitting with a judge and jury:

  • Treason;
  • encouragement or concealing knowledge of treason;
  • offences relating to the obstruction of government and obstruction of the President;
  • murder, attempted murder, conspiracy to murder;
  • piracy (the fellow with the peg leg and the parrot on his shoulder, as opposed to illegally downloading movies);
  • offences under the Genocide Act, 1973;
  • rape, aggravated sexual assault and attempted aggravated sexual assault under the Criminal Law (Rape) (Amendment) Act, 1990.

 

A court of law must be distinguished from other tribunals

Article 34.1 of the Constitution provides that “justice” cannot be administered in any place other than a court which has been established in accordance with the Constitution, presided over by a properly appointed judge. However, Article 37.1 also authorises persons other than judges or courts to exercise “limited” functions and powers of a judicial nature, except in criminal matters.

It is therefore very important to determine what is meant by Article 34.1 read with Article 37.1. So where a person or tribunal other than a duly appointed judge engages in the administration of justice, does that person or tribunal act in violation of the Constitution, and are their decisions invalid? The quick answer is yes they will be, unless these powers and decisions are “limited” in the sense envisaged by Article 37.1. In other words, are those powers being exercised contrary to Article 34.1, and if so, are they saved by Article 37.1?

The question is also important because it determines what issues are capable of being dealt with by the courts, what are called justiciable matters, and those which are not, which can be described as non-justiciable matters.

This is a tricky question which is difficult to answer conclusively as each case will need to be looked at on its own before deciding. However, in the case of McDonald v Bord na gCon (No 2) [1965] IR 217, the following five characteristics of an administration of justice within the meaning of Article 34.1 were listed:

  1. A dispute or controversy as to the existence of legal rights or a violation of the law.
  2. The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty.
  3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties.
  4. The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgement.
  5. The making of an order by the court which as a matter of history is an order characteristic of the courts in this country.

This list is a useful, although not definitive, guide as to what constitutes a justiciable dispute or what constitutes an exercise of judicial power, as opposed to a purely administrative power.

 

Civil courts and Criminal courts

It is impossible to understand the structure and functioning of courts without understanding the distinction between a criminal case and a civil case, and the functions and powers of both courts.

The nature of the dispute and the mechanisms used are the critical differences between the two systems.

Civil procedure involves private law disputes, for example personal injury claims (tort) or claims for breach of contract, where one of the parties to the dispute initiates the proceedings. Criminal procedure deals with the processing of some activity regarded as a wrong against society or the public in general, and is thus a public law matter. Criminal prosecutions are generally initiated by the Director of Public Prosecutions or the Garda Síochána. It is possible for individuals to initiate private prosecutions, but these are rare.

Generally the purpose of a civil claim is to seek compensation (damages) or some specific relief, like an injunction, whereas the aim of criminal proceedings is to punish wrongdoers. For example, if the accused is found guilty and sentenced to a fine rather than imprisonment, that fine is paid to the State and not to the victim of the crime, as the criminal law seeks to protect society as a whole rather than the individual.

 

Civil proceedings are generally initiated by pleadings, whilst criminal proceedings are generally initiated by a summons and indictment (“charge sheet”). In civil cases we speak of a plaintiff and a defendant, or perhaps applicant and respondent, whereas in criminal cases we speak of the prosecution and a defendant (“the accused”).

In other words, it is not so much the type of wrongful act that distinguishes the civil from the criminal, but the consequences of that wrongful act. If the wrongful act leads to criminal charges, it is governed by criminal law but if it leads to the wrongdoer being sued for damages or having an injunction taken against him or being ordered to perform on a contract, that is governed by the civil law. Therefore it is possible for the same act to lead to both criminal charges and a civil action. For example, if a driver went through a red traffic light and smashed into another car, the driver might be charged in the criminal court with dangerous driving, but might also be sued in the civil court by the owner of the damaged car for compensation. There was only one act, but two types of litigation which ended up in different courts with different questions being asked.

The final distinction to be made between civil and criminal proceedings relates to the burden of proof, which describes the level of evidence needed to secure a judgement or a conviction. In civil cases, any particular issue as well as the overall question of liability is determined on a balance of probabilities, which involves comparing the versions of the plaintiff and defendant. In a criminal case all issues and the question of guilt must be proved beyond reasonable doubt, a higher standard of proof which needs to convince the reasonable person not that the accused is guilty, but rather that there is no reasonable chance that the accused is innocent.

 

The Organisation of the Courts

courts 

 From: The Irish Courts System – courtesy of the The Courts Service

 

The District Court

The District Court consists of a President and sixty three ordinary judges. For legal purposes Ireland is divided into twenty four districts with one or more judges permanently assigned to each district and the Dublin Metropolitan District. In criminal law the venue of a District Court case usually depends on where an offence was committed or where the defendant was arrested. In civil law the venue will depend on things like where the contract was created or where the defendant resides or carries on business.

The business of the District Court can be divided into four categories:- criminal, civil, family law and licensing. The District Courts are the workhorses of the system, and they hear an enormous number of cases, including things like actions taken under the Control of Dogs Acts, applications for citizenship, applications to amend birth and marriage certificates, and applications under the Environmental Protection Act, 1992 (for noise reduction orders).

The District Court is a court of local and limited jurisdiction. This means that it is restricted as to which cases it can hear and/or decide. As a general rule, a District Court cannot hear a case that has been commenced in a different District Court area. It is also restricted to hearing cases where the damages or compensation sought do not exceed a certain amount (at the moment up to €15,000), and in criminal matters it is generally restricted to summary offences.

A summary offence does not entitle the accused person to a trial by jury, and carries a maximum punishment of twelve months’ imprisonment and/or a monetary fine. An example would be driving a motor vehicle without insurance. An indictable offence entitles the defendant to a trial by jury, unless the accused agrees to a summary trial where the court is of the opinion that the offence is minor. In such cases, the maximum punishment is two years’ imprisonment or twelve months’ imprisonment for one offence and/or a monetary fine. An example here would be assault.

In serious criminal cases, for example murder or rape, the District Court may conduct a preliminary hearing to decide whether there is sufficient evidence to commit the accused for trial by jury before a higher court.

 

The Circuit Court

The Circuit Court consists of the President and thirty-seven ordinary judges. The President of the District Court is ex officio (by virtue of their office) an additional judge of the Circuit Court. The country is divided into eight circuits with one judge assigned to each circuit except in Dublin where ten judges may be assigned, and Cork where there is provision for three judges. There are twenty-six Circuit Court offices throughout the Republic.

The work of the Circuit Court can be divided into four main areas: civil, criminal, family law and jury service.

The Circuit Court is also a court of local and limited jurisdiction. This means that it is restricted as to which cases it can decide. As a general rule, a Circuit Court in one county cannot hear a case that has been commenced in another county.

Civil cases in the Circuit Court are tried by a judge sitting without a jury and are restricted to cases where the damages or compensation sought do not exceed a certain amount (between €15,000 – €75,000 at the moment).

There is a right of appeal against the decision of the judge to the High Court, and a Circuit Court judge may consult the Supreme Court on points of law. An unsuccessful party in a District Court civil case can appeal to the Circuit Court, which will rehear the case and may substitute its own opinion.

In criminal matters, the Circuit Court Judge sits with a jury of twelve. The criminal jurisdiction is exercised by the judge of the Circuit in which the offence was committed or where the defendant (‘accused’) resides or carries on business or where the defendant was arrested. However, the Circuit Judge may transfer a criminal trial from one part of his/her Circuit to another. On application by the Director of Public Prosecutions or the accused, the Circuit Judge may, if satisfied that it would be manifestly unjust not to do so, transfer the trial from the Circuit Court sitting outside of the Dublin Circuit to the Dublin Circuit Court.

 

The Court of Criminal Appeal

This court hears appeals from the Circuit Court, Central Criminal Court or a Special Criminal Court (which is a non-jury court which may be set up under Part V of the Offences Against the State Act 1939). The court consists of three judges, one from the Supreme Court and two from the High Court, with the decision of the court by majority.

 

The High Court

The High Court consists of the President of the High Court and thirty six ordinary judges. The President of the Circuit Court and the Chief Justice are ex officio additional judges of the High Court.

Normally the High Court sits in Dublin to hear original actions (cases that begin in the High Court rather than appeals from a lower court), but it also sits in the other counties during the year.

The jurisdiction of the High Court extends to all matters whether of law or fact, civil or criminal. It also has jurisdiction to hear constitutional challenges (usually by citizens) to statutes (with the Court of Appeal and the Supreme Court (in more limited cases now) having appellate jurisdiction in these matters).

The High Court can award unlimited damages.

When the High Court hears a criminal case, it sits as the Central Criminal Court and only tries serious offences such as murder or rape. It also tries cases which have been transferred from the Circuit Court to avoid trial before a local jury.

Finally, the High Court possesses supervisory jurisdiction over the inferior courts, state bodies and individuals. The High Court has the power to issue an order of:

a) prohibition, to prevent a person or body from exercising a power it does not legally have;

b) mandamus, to compel a person or body to carry out a legal duty;

c) certiorari, to investigate or challenge a person or body who has exceeded their legal powers;

d) habeas corpus, to require the person in custody and the detainer to come before the High Court to explain the circumstances of, and justification for, the detention.

The High Court acts as an appeal court from the Circuit Court in civil matters. The High Court has power to review the decisions of all inferior courts by judicial review. The High Court may give rulings on a question of law submitted by the District Court and may hear appeals in certain other circumstances provided by statute, i.e. in regard to decisions of the District Court on applications for bail. The High Court can review decisions of certain Tribunals of Inquiry.

 

The Court of Appeal

The Thirty-third Amendment of the Constitution established a Court of Appeal to sit between the existing High and Supreme Courts, and take over the existing appellate jurisdiction of the Supreme Court. The amendment was effected by the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013, which was approved by the People in a referendum on 4 October 2013, and then signed into law by the President of Ireland, Michael D. Higgins on 1 November 2013.

The Court of Appeal was established on 28th October 2014 by the Court of Appeal Act 2014. The court is composed of a President and nine ordinary judges. The Chief Justice and the President of the High Court are ex officio judges of the Court of Appeal. The Court may sit in divisions of three judges. Some interlocutory and procedural applications may be heard by the President alone or by another judge nominated by the President.

The primary reason for the creation of this court was the large number of outstanding civil & constitutional law appeals from the High Court dating back in some cases to 2008. It was hoped that the new court would eliminate these court delays.

The Court of Appeal will deal with civil appeals from the High Court. It will be possible for the Supreme Court to hear appeals from the Court of Appeal where the issue involved concerns a matter of general public importance or where it is in the interests of justice that the appeal be heard by the Supreme Court. It will also be possible in exceptional circumstances for the Supreme Court to hear appeals directly from the High Court where this is in the public interest or the interest of justice.

The Court of Appeal will deal with criminal cases which were due to be heard by the Court of Criminal Appeal (now abolished). It will hear appeals against conviction and/or sentence from the Central Criminal Court, the Special Criminal Court and the Circuit Court. The appeal is not a rehearing of the case but is based on the transcript of the evidence given at the trial and is usually confined to points of law, or alternatively that the verdict was contrary to the weight of the evidence. On hearing the evidence, the Court of Appeal may exercise a number of options including allowing the appeal and acquitting the defendant or dismissing the appeal.

 

The Supreme Court

Article 34 of Bunreacht na hÉireann (the Irish Constitution) states that the courts system in Ireland will include a Court of Final Appeal. This Court of Final Appeal is known in Ireland as the ‘Supreme Court’. The Supreme Court consists of the Chief Justice and seven ordinary judges. In addition, the President of the High Court is ex officio a member of the Supreme Court. This court is located in Dublin.

The Supreme Court has the power to hear appeals from all decisions of the Court of Appeal, and it may hear an appeal from the Court of Criminal Appeal if that court or the Attorney General certifies that the decision involves a legal point of exceptional public interest. The Supreme Court may also give a ruling on a question of law submitted to it by the Circuit Court.

The Constitution provides that the President of Ireland may refer any Bill (or any provision(s) of a Bill) for adjudication to the Supreme Court, in other words the Supreme Court will decide whether that proposed law is in agreement with, or repugnant to, the Constitution. For this type of case a quorum of five judges will sit, but there will be a single (unanimous) judgment. Once the Supreme Court declares a Bill as being constitutional, that is the end of the matter, and the constitutionality of that Bill can never be challenged again. If the Court declares the Bill unconstitutional, that Bill will have to go back to the Oireachtas to repair the problems that were raised by the Supreme Court.

If a question of the permanent incapacity of the President arises, this is decided by the Supreme Court, again by five judges.

This court is known as the Supreme Court for the simple reason that it is at the top of the hierarchy of courts. It is the court of ‘final resort’.

 

Referral to the European Court of Justice (ECJ)

All domestic courts, from the lowest to the highest, are empowered by the EU treaties to refer points of EU law to the ECJ. A referral means that the court is asking for advice which it is not obliged to follow, but usually does as long as it does not offend our own Constitution. All Irish courts except the Special Criminal Court have referred matters to the ECJ. The majority of cases referred to the ECJ are civil claims originating in the High Court.

In terms of EU law, there are also instances when an Irish court must refer a matter to the ECJ. This is when a court or tribunal can make a decision ‘against which there is no judicial remedy under national law’. In other words, that decision cannot be challenged in terms of Irish law, but can be challenged under EU law. In this situation the Irish court must refer a point of EU law that is raised by the case before them to the ECJ.

The ECJ has made it clear that this does not just mean the Supreme Court (against which there is no appeal as it is at the top if the hierarchy) but any court or tribunal whose decision cannot be appealed.

It is important to realise that a judgment of the ECJ is not binding on our domestic courts, although they might follow it (it is persuasive). Rather, a judgment of the ECJ is binding on the Republic of Ireland as an EU Member State, and therefore the government of the day must take steps to ensure that a judgment of the ECJ is implemented and followed. This is usually done through legislation.

 

Judicial review

Judicial review should be distinguished from an appeal. An appeal on a point of law concerns the issue involved in the lower court’s decision, which lawyers describe as “the merits”. In other words you can appeal a decision that you think is wrong.

Judicial review, on the other hand, is concerned with the authority of the lower court or tribunal to enter into an adjudication in the first place (its jurisdiction) or the procedures followed by it in the course of the adjudication.

Put simply, judicial review involves determining whether the court or tribunal acted intra vires (within its powers) or ultra vires (in excess of, or outside, its powers) and whether it complied with the basic rules of natural justice and fair procedures. In particular it must be unbiased (nemo judex in causa sua – nobody may be a judge in his own court) and give all sides involved in the matter the chance to properly prepare their case and to be afforded an even-handed hearing allowing them to properly present their case (audi alteram partem – let the other side be heard).

In essence therefore where an appeal is looking at the substance of a decision and deciding on the merits whether that decision is right or wrong, a review is more interested in how that decision was reached.

The application for judicial review is in two stages. The first stage involves an ex parte application (where the applicant is on their own, their opponent is not notified) to a High Court judge for leave to proceed. Here the applicant is only allowed to set out the grounds on which relief is being sought. This application is granted if the judge considers that the case discloses some ground for claiming relief, although no decision on the merits will be made at that stage. The applicant must then serve notice on the other party, the respondent. The respondent now has an opportunity to challenge the applicant’s case.

The second stage is the application for judicial review itself, where the court determines whether the order sought by the applicant should be granted. The court may grant other remedies, such as an award of damages.

In particular, a reviewing court can grant what are known as prerogative writs, which consist of the orders of Mandamus, prohibition and certiorari. A writ of Mandamus orders a particular person or a  court to carry out a specific function. Prohibition is the reverse of that where a particular person or court is prohibited from carrying out a specific function. Certiorari is an order that requires an issue to be transferred to the court for an order to be reviewed by that court and if necessary to be quashed if, for example, the order was made ultra vires the powers of that court.

The other order which is generally described as a prerogative writ (although in Ireland it is specifically mentioned and guaranteed in the Constitution and therefore has a unique quality) is the writ of habeus corpus (“present the body” or “deliver the body”) which if granted will secure the release of a person who is wrongfully detained.

 

Officers of the courts

Appointment of Judges and the Independence of the Judiciary

Article 35.1 of the Constitution says that Judges must be appointed by the President. In practice, the President appoints judges on the advice of government, who in turn are guided by the recommendations of the Judicial Appointments Advisory Board.

A qualified barrister or solicitor who has practised as such for not less than ten years is qualified to be appointed as a Judge of the District Court and Circuit Court. As to the appointment to the High Court and Supreme Court, a judge of the Circuit Court of four years standing is qualified for appointment as a judge of the High Court or the Supreme Court.

It is possible for barristers or solicitors to be appointed directly to the High Court and even the Supreme Court. So for example, a barrister or solicitor of not less than twelve years’ standing who has practised for a continuous period of not less than two years before such appointment can be appointed directly to the Supreme Court.

The whole basis of any democratic system is that the courts must be able to stop the government from breaking the law or undermining the Constitution.  What this means is that a judge must be free of any political influence or duress, particularly from the government of the day.

Article 34.5.1 of the Constitution sets out the sworn oath to be taken by judges, and includes the well-known line “without fear or favour, affection or ill-will”, and this underlines the importance of an independent judiciary. Two further practical elements in the independence of the judges of the High Court and the Supreme Court are the extreme difficulty in removing a judge from office (Article 35.4.1), and the guarantee that their salary cannot be reduced (Article 35.5), which both ensure that judges do not feel in any way obliged to the government of the day, and do not need to fear for their jobs if they oppose the government.

As long as a judge’s performance in court is bona fide (in good faith), he or she cannot be sued for negligence or defamation. This ensures that a judge will act without fear or favour, and is an important common law principle, which has consistently been upheld by our courts.

 

Barristers

The barrister’s profession is regulated by the Bar Council. The barrister is essentially a courtroom specialist, skilled in the art of advocacy and argument. In addition a barrister is often instructed by a solicitor (“briefed”) to draft pleadings and other complex legal documents. In a big case, a solicitor may gather the evidence, but will brief a barrister to draft the pleadings, give an advice on proofs (i.e. advise on the prospects of success in light of the available evidence) and present the case in court.

 

Solicitors

The solicitor’s profession is regulated by the Law Society of Ireland, which controls entry to the profession, disciplines its members where necessary, and protects the public from unqualified persons.

Solicitors often do legal work not involving litigation or dispute, for example drafting a will or a contract, or conveyancing immovable property. Where there is litigation, the solicitor often does the ground work: research, correspondence, preparation of documentation and collection of evidence, and attends preliminary hearings. Since 1971 a solicitor may appear alone as an advocate in any court in Ireland. However, in practice, the solicitor tends to restrict appearance to the lower courts and employs a barrister to conduct matters in the superior courts and at trials.

 

The Director of Public Prosecutions (“the DPP”)

This office was established by the Prosecution of Offences Act 1974. Although the DPP is a public servant, he or she should be independent of the government of the day in the carrying out of the functions of the office. The role of the DPP is to prosecute serious crimes in the name of the people, which essentially amounts to deciding whether to charge a person or not and if so, with what crime to charge that person.

All decisions to prosecute or not are final once made, and the reasons for the decision are not published (although this has changed to a very limited extent and might be further changed in the future).

 

The Attorney General (“the AG”)

The office of the AG was created in 1924, and has been preserved by Article 30 of the Constitution. The AG is appointed by the President on the nomination of the Taoiseach, and is linked to that office, to the extent that the AG will resign if the Taoiseach resigns.

The AG is a legal adviser to the government and institutes and defends proceedings to which the State is a party.

 

Useful websites:

  1. The Supreme Court (supremecourt.ie)
  2. Courts Service of Ireland (courts.ie)
  3. Office of the Attorney-General (attorneygeneral.ie)
  4. Office of the Director of Public Prosecutions (dppireland.ie/)
  5. The Bar Council of Ireland (barcouncil.ie)
  6. The Law Society of Ireland (lawsociety.ie).
Posted in Academic Research; Peer-Review Process; Medical Journals, EirGrid; Insurance; Law; Cancer; EMF, High Court; Judge Caroline Costello; John Callaghan; Leave to Appeal, High Court; Judicial Review; Appeal on the merits; judicial discretion, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Law; High Court; Leave To Appeal; Environment, Legal Costs; Access to Justice; Courts, Peremptory law; Directory Law; Planning and Devlopment Act of 2000 | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Communities under threat

The Bully EirGrid

 

This is the Press Release from WindAware Ireland concerning the critical situation in which the people of Ratheniska, County Laois, find themselves.

Wind Aware Ireland Press Release

One Small Laois Community to Blockade A Big Energy Company

A small Laois community will begin to blockade the site of an enormous electrical sub-station in Ratheniska Co. Laois tomorrow morning 25th June. Practically every hill within view of the site has a wind farm proposed upon it and the largest solar farm in Ireland (320 acres) has just been granted permission in the valley. This an entire region facing the destruction of their entire landscape. Decent and reasonable people are being left no option but to engage in direct action.

http://www.midlands103.com/midlandstoday/one-small-laois-community-versus-a-big-energy-company/

Local spokesperson Colm Fingleton said; ‘… we were never told the truth, … this company Eirgird have never told this community the truth about this station.. …I’m sorry but we are going to have to call it to a halt.’

The project, the Laois/Kilkenny reinforcement project, which Eirgrid claim is required to reinforce the grid in ‘high wind scenarios’ and has been opposed by the local community for over nine years. The sub-station, sited above an important aquifer that supplies water to large areas of Laois, was opposed through the planning system and the courts until Eirgridthreatened to pursue to the community for enormous costs. The community were left with no choice but to withdraw their case. This tactic is typical of large companies pushing infrastructure on unwilling rural communities.

In addition to this enormous sub-station Laois is the site of several proposed wind farms, one of which, in Cullenagh, has been opposed by that community for over 6 years. This group were also threatened with costs in court by An Bord Pleanála but continued their fight and have recently scored a major victory against Coillte in the European Court of Justice.

https://www.irishtimes.com/news/environment/european-court-upholds-claims-of-laois-wind-farm-objectors-1.3465503

Deputy Sean Fleming has said he will bring the issue before the Public Accounts Committee and examine expenditure by Eirgrid, which to date, has seen an overspend of €30m. The Commission for Regulation of Utilities (CRU) has stated that ‘each proposed project over €10m will undergo a rigorous cost-benefit analysis’. When asked to confirm the purpose and necessity of the extra capacity for further power line connection, CRU responded; ‘The (CRU) does not hold any records in relation to this matter’ but, amazingly, that the project had been ‘deemed necessary works’.

In other words, the purpose of this €110m project, the costs of which will be retrievable from energy customers despite the complete lack of cost-benefit analysis, is so secret that even the Regulator doesn’t know what it is for!

Wind energy and associated grid infrastructure, such as this, are estimated to cost about €1.2 billion p.a. To date, no cost benefit analysis, strategic environmental assessment or regulatory impact analysis has been carried out to justify these enormous costs. It should not be left to community groups to point this out.

https://www.yumpu.com/en/document/view/59534715/costs-of-wind-energy-report

windaware ireland

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How do our courts work?

 

Jail Full

The volume of work at my place of employment has caused me to neglect this blog, for which I apologise.

Rather  than simply stopping  blogging, I thought I might combine work and blogging.

The piece below is a very rough draft of the introductory chapter of a book I am writing for students entering third level education. It should be clear and easy to understand.

A lot of the readers of this blog do not necessarily understand how the courts work in this country and so this presents a great opportunity  for us to help each other

I would greatly appreciate it if you would read this chapter.  Hopefully you will learn something, or simply confirm what you already know. Then I would ask that you provide  feedback on whether the language was accessible, whether terms and concepts were properly  explained, and if anything has been left out.

********************************

 

Introduction: The Hierarchy and Jurisdiction of the Courts of Ireland

 

Learning Outcomes

At the completion of this chapter, the reader should know and understand the following:

Ø  Core legal concepts that are often used in this book.

Ø  The difference between the criminal courts and the civil courts.

Ø The courts system in Ireland and what the different courts can and cannot do.

Ø The people that work in the courts system.

 

The contents of this book will be easier to understand if you first read this short explanation on how the court system works in Ireland and become familiar with the following concepts:

 

Hierarchy

Generally, any system of grades or ranks, in which some are superior to others. What is meant by the hierarchy of courts is the position of the courts with reference to each other, starting at the bottom all the way to the top.

 

Precedents

Previous decisions of the superior courts which contain a legal principle which may, in a later case raising the same point of law, be referred to and which may influence the court’s decision.

 

Bind a court

Where a court must follow a previous decision or precedent. Lower courts must follow the decisions of higher courts, whether they agree with that decision or not, as they are ‘bound’ by the decisions of superior courts.

 

Adversarial

The Irish legal system is predominantly adversarial, which means it is characterised by its confrontational nature. Parties directly oppose each other, and there is a “winner” and a “loser”. A contrasting system is the inquisitorial system, where the proceedings are conducted by the presiding officer in the form of an investigation rather than a direct contest.

 

 Pleadings

Formal written or printed statements delivered by litigating parties to each other, stating the allegations of fact upon which the parties base their case. This ensures that nobody is caught by surprise on the day of the court hearing, as the parties have been forewarned about their opponent’s arguments and had time to prepare a reply.

 

Injunction

An order of the court directing a party to an action to do something (mandatory injunction) or refrain from doing something (prohibitory injunction).

 

Burden of Proof (Onus)

The burden of proof needs to be satisfied by the person bringing the claim or laying the charge in order to be successful in that action or charge. A plaintiff in a civil action bears the onus to prove his or her claim on a balance of probabilities, whereas in criminal proceedings the State bears the onus of proving the guilt of the accused beyond a reasonable doubt.

 

Indictable

An indictable offence is one which is sufficiently serious to warrant a jury trial (and heavy sentences), whereas a summary or non-indictable offence is one which can be heard by a judge only (often called misdemeanours in other jurisdictions) with correspondingly lighter sentences.

 

Acquitted

When the accused / defendant is found “not guilty” in a criminal trial.

 

Citation

A reference to an authority (for example, a reported judgment) usually in support of an argument or another judgement. For example, Walsh v Family Planning Services Ltd [1992]1 I.R. 496 is a citation of a judgment where the plaintiff was Walsh, the defendant was Family Planning Services, and the case can be found on page 496 of the first volume of the 1992 edition of the Irish Law Reports (I.R.), as opposed to the Irish Law Reports Monthly (I.L.R.M.). Not all judgments are reported. Generally the citation for an unreported judgment will tell you the date of the decision, and the court making that decision.

 

Bar

In systems that distinguish between barristers and solicitors, the Bar generally refers to the professional collection of barristers, whilst “Side-Bar” refers to solicitors.

 

Jurisdiction

Jurisdiction refers to the extent or territory over which legal or other power extends. A decision of an Irish court would not affect an American citizen, unless that American was physically present in Ireland, because then they would be subject to Irish law.

When speaking about civil and criminal jurisdiction therefore, we are talking about what civil and criminal courts can and cannot do, and where they can and cannot do it.

 

Civil courts and Criminal courts

It is impossible to understand the structure and functioning of courts without understanding the distinction between a criminal case and a civil case, and the functions and powers of both courts.

The nature of the dispute and the mechanisms used are the critical differences between the two systems.

Civil procedure involves private law disputes, for example personal injury claims (tort) or claims for breach of contract, where one of the parties to the dispute initiates the proceedings. Criminal procedure deals with the processing of some activity regarded as a wrong against society or the public in general, and is thus a public law matter. Criminal prosecutions are generally initiated by the Director of Public Prosecutions or the Garda Síochána. It is possible for individuals to initiate private prosecutions, but these are rare.

Generally the purpose of a civil claim is to seek compensation (damages) or some specific relief, like an injunction, whereas the aim of criminal proceedings is to punish wrongdoers. For example, if the accused is found guilty and sentenced to a fine rather than imprisonment, that fine is paid to the State and not to the victim of the crime, as the criminal law seeks to protect society as a whole rather than the individual.

Civil proceedings are generally initiated by pleadings, whilst criminal proceedings are generally initiated by a summons and indictment (“charge sheet”). In civil cases we speak of a plaintiff and a defendant, or perhaps applicant and respondent, whereas in criminal cases we speak of the prosecution and adefendant (“the accused”).

In other words, it is not so much the type of wrongful act that distinguishes the civil from the criminal, but the consequences of that wrongful act. If the wrongful act leads to criminal charges, it is governed by criminal law but if it leads to the wrongdoer being sued for damages or having an injunction taken against him or being ordered to perform on a contract, that is governed by the civil law. Therefore it is possible for the same act to lead to both criminal charges and a civil action. For example, if a driver went through a red traffic light and smashed into another car, the driver might be charged in the criminal court with dangerous driving, but might also be sued in the civil court by the owner of the damaged car for compensation. There was only one act, but two types of litigation which ended up in different courts with different questions being asked.

The final distinction to be made between civil and criminal proceedings relates to the burden of proof, which describes the level of evidence needed to secure a judgement or a conviction. In civil cases, any particular issue as well as the overall question of liability is determined on a balance of probabilities, which involves comparing the versions of the plaintiff and defendant. In a criminal case all issues and the question of guilt must be proved beyond reasonable doubt, a higher standard of proof which needs to convince the reasonable person not that the accused is guilty, but rather that there is no reasonable chance that the accused is innocent.


Organisation of the Courts

 

The District Court

The District Court consists of a President and sixty three ordinary judges. The Republic is divided into twenty four districts with one or more judges permanently assigned to each district and the Dublin Metropolitan District. The venue of a District Court case usually depends on where an offence was committed or where the defendant resides or carries on business or was arrested.

The business of the District Court can be divided into four categories:- criminal, civil, family law and licensing. The District Courts are the workhorses of the system, and they hear an enormous number of cases, including things like actions taken under the Control of Dogs Acts, applications for citizenship, applications to amend birth and marriage certificates, and applications under the Environmental Protection Act, 1992 (for noise reduction orders).

The District Court is a court of local and limited jurisdiction. This means that it is restricted as to which cases it can hear and/or decide. As a general rule, a District Court cannot hear a case that has been commenced in a different District Court area, and is restricted to hearing cases where the damages or compensation sought do not exceed a certain amount, and in criminal matters it is generally restricted to summary offences.

A summary offence does not entitle the accused person to a trial by jury, and carries a maximum punishment of twelve months’ imprisonment and/or a monetary fine. An example would be driving a motor vehicle without insurance. An indictable offence entitles the defendant to a trial by jury, unless the accused agrees to a summary trial where the court is of the opinion that the offence is minor. In such cases, the maximum punishment is two years’ imprisonment or twelve months’ imprisonment for one offence and/or a monetary fine. An example here would be assault. In serious criminal cases, for example murder or rape, the District Court may conduct a preliminary hearing to decide whether there is sufficient evidence to commit the accused for trial by jury before a higher court.

 

The Circuit Court

The Circuit Court consists of the President and thirty-seven ordinary judges. The President of the District Court is ex officio (by virtue of their office) an additional judge of the Circuit Court. The country is divided into eight circuits with one judge assigned to each circuit except in Dublin where ten judges may be assigned, and Cork where there is provision for three judges. There are twenty-six Circuit Court offices throughout the Republic.

The work of the Circuit Court can be divided into four main areas: civil, criminal, family law and jury service.

The Circuit Court is also a court of local and limited jurisdiction. This means that it is restricted as to which cases it can decide. As a general rule, a Circuit Court in one county cannot hear a case that has been commenced in another county.

Civil cases in the Circuit Court are tried by a judge sitting without a jury and are restricted to cases where the damages or compensation sought do not exceed a certain amount.

There is a right of appeal against the decision of the judge to the High Court, and a Circuit Court judge may consult the Supreme Court on points of law. An unsuccessful party in a District Court civil case can appeal to the Circuit Court, which will rehear the case and may substitute its own opinion.

In criminal matters, the Circuit Court Judge sits with a jury of twelve. The criminal jurisdiction is exercised by the judge of the Circuit in which the offence was committed or where the defendant (‘accused’) resides or carries on business or where the defendant was arrested. However, the Circuit Judge may transfer a criminal trial from one part of his/her Circuit to another. On application by the Director of Public Prosecutions or the accused, the Circuit Judge may, if satisfied that it would be manifestly unjust not to do so, transfer the trial from the Circuit Court sitting outside of the Dublin Circuit to the Dublin Circuit Court.

 

The Court of Criminal Appeal

This court hears appeals from the Circuit Court, Central Criminal Court or a Special Criminal Court (which is a non-jury court which may be set up under Part V of the Offences Against the State Act 1939). The court consists of three judges, one from the Supreme Court and two from the High Court, with the decision of the court by majority.

 

The High Court

The High Court consists of the President of the High Court and thirty six ordinary judges. The President of the Circuit Court and the Chief Justice are ex officio additional judges of the High Court.

Normally the High Court sits in Dublin to hear original actions (cases that begin in the High Court rather than appeals from a lower court), but it also sits in the other counties during the year.

The jurisdiction of the High Court extends to all matters whether of law or fact, civil or criminal. It also has jurisdiction to hear constitutional challenges (usually by citizens) to statutes (with the Court of Appeal and the Supreme Court (in more limited cases now) having appellate jurisdiction in these matters).

The High Court can award unlimited damages.

When the High Court hears a criminal case, it sits as the Central Criminal Court and only tries serious offences such as murder or rape. It also tries cases which have been transferred from the Circuit Court to avoid trial before a local jury.

Finally, the High Court possesses supervisory jurisdiction over the inferior courts, state bodies and individuals. The High Court has the power to issue an order of:

 

  1. a) prohibition, to prevent a person or body from exercising a power it does not legally have;
  2. b) mandamus, to compel a person or body to carry out a legal duty;
  3. c) certiorari, to investigate or challenge a person or body who has exceeded their legal powers;
  4. d) habeas corpus, to require the person in custody and the detainer to come before the High Court to explain the circumstances of, and justification for, the detention.

 

The High Court acts as an appeal court from the Circuit Court in civil matters. The High Court has power to review the decisions of all inferior courts by judicial review. The High Court may give rulings on a question of law submitted by the District Court and may hear appeals in certain other circumstances provided by statute, i.e. in regard to decisions of the District Court on applications for bail. The High Court can review decisions of certain Tribunals of Inquiry.

 

The Court of Appeal

The Thirty-third Amendment of the Constitution established a Court of Appeal to sit between the existing High and Supreme Courts, and take over the existing appellate jurisdiction of the Supreme Court. The amendment was effected by the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013, which was approved by the People in a referendum on 4 October 2013, and then signed into law by the President of Ireland, Michael D. Higgins on 1 November 2013.

The Court of Appeal was established on 28th October 2014 by the Court of Appeal Act 2014. The court is composed of a President and nine ordinary judges. The Chief Justice and the President of the High Court are ex officio judges of the Court of Appeal. The Court may sit in divisions of three judges. Some interlocutory and procedural applications may be heard by the President alone or by another judge nominated by the President.

The primary reason for the creation of this court was the large number of outstanding civil & constitutional law appeals from the High Court dating back in some cases to 2008. It was hoped that the new court would eliminate these court delays.

The Court of Appeal will deal with civil appeals from the High Court. It will be possible for the Supreme Court to hear appeals from the Court of Appeal where the issue involved concerns a matter of general public importance or where it is in the interests of justice that the appeal be heard by the Supreme Court. It will also be possible in exceptional circumstances for the Supreme Court to hear appeals directly from the High Court where this is in the public interest or the interest of justice.

The Court of Appeal will deal with criminal cases which were due to be heard by the Court of Criminal Appeal (now abolished). It will hear appeals against conviction and/or sentence from the Central Criminal Court, the Special Criminal Court and the Circuit Court. The appeal is not a rehearing of the case but is based on the transcript of the evidence given at the trial and is usually confined to points of law, or alternatively that the verdict was contrary to the weight of the evidence. On hearing the evidence, the Court of Appeal may exercise a number of options including allowing the appeal and acquitting the defendant or dismissing the appeal.

 

The Supreme Court

Article 34 of Bunreacht na hÉireann (the Irish Constitution) states that the courts system in Ireland will include a Court of Final Appeal. This Court of Final Appeal is known in Ireland as the ‘Supreme Court’. The Supreme Court consists of the Chief Justice and seven ordinary judges. In addition, the President of the High Court is ex officio a member of the Supreme Court. This court is located in Dublin.

The Supreme Court has the power to hear appeals from all decisions of the Court of Appeal, and it may hear an appeal from the Court of Criminal Appeal if that court or the Attorney General certifies that the decision involves a legal point of exceptional public interest. The Supreme Court may also give a ruling on a question of law submitted to it by the Circuit Court.

The Constitution provides that the President of Ireland may refer any Bill (or any provision(s) of a Bill) for adjudication to the Supreme Court, in other words the Supreme Court will decide whether that proposed law is in agreement with, or repugnant to, the Constitution. For this type of case a quorum of five judges will sit, but there will be a single (unanimous) judgment. Once the Supreme Court declares a Bill as being constitutional, that is the end of the matter, and the constitutionality of that Bill can never be challenged again. If the Court declares the Bill unconstitutional, that Bill will have to go back to the Oireachtas to repair the problems that were raised by the Supreme Court.

If a question of the permanent incapacity of the President arises, this is decided by the Supreme Court, again by five judges.

This court is known as the Supreme Court for the simple reason that it is at the top of the hierarchy of courts. It is the court of ‘final resort’.

 

 

Officers of the courts

 

Appointment of Judges and the Independence of the Judiciary

Article 35.1 of the Constitution says that Judges must be appointed by the President. In practice, the President appoints judges on the advice of government, who in turn are guided by the recommendations of the Judicial Appointments Advisory Board.

A qualified barrister or solicitor who has practised as such for not less than ten years is qualified to be appointed as a Judge of the District Court and Circuit Court. As to the appointment to the High Court and Supreme Court, a judge of the Circuit Court of four years standing is qualified for appointment as a judge of the High Court or the Supreme Court.

A judge must be free of any political influence, particularly from the government of the day. Article 34.5.1 of the Constitution sets out the sworn oath to be taken by judges, and includes the well known line “without fear or favour, affection or ill-will”, and this underlines the importance of an independent judiciary. Two further practical elements in the independence of the judges of the High Court and the Supreme Court are the extreme difficulty in removing a judge from office (Article 35.4.1), and the guarantee that their salary cannot be reduced (Article 35.5), which both ensure that judges do not feel in any way obliged to the government of the day.

As long as a judge’s performance in court is bona fide (in good faith), he or she cannot be sued for negligence or defamation. This ensures that a judge will act without fear or favour, and is an important common law principle, which has consistently been upheld by our courts.

 

Barristers

The barrister’s profession is regulated by the Bar Council. The barrister is essentially a courtroom specialist, skilled in the art of advocacy and argument. In addition a barrister is often instructed by a solicitor (“briefed”) to draft pleadings and other complex legal documents. In a big case, a solicitor may gather the evidence, but will brief a barrister to draft the pleadings, give an advice on proofs (i.e. advise on the prospects of success in light of the available evidence) and present the case in court.

 

Solicitors

The solicitor’s profession is regulated by the Law Society of Ireland, which controls entry to the profession, disciplines its members where necessary, and protects the public from unqualified persons.

Solicitors often do legal work not involving litigation or dispute, for example drafting a will or a contract, or conveyancing immovable property. Where there is litigation, the solicitor often does the ground work: research, correspondence, preparation of documentation and collection of evidence, and attends preliminary hearings. Since 1971 a solicitor may appear alone as an advocate in any court in Ireland. However, in practice, the solicitor tends to restrict appearance to the lower courts and employs a barrister to conduct matters in the superior courts and at trials.

 

The Director of Public Prosecutions (“the DPP”)

This office was established by the Prosecution of Offences Act 1974. Although the DPP is a public servant, he or she should be independent of the government of the day in the carrying out of the functions of the office. The role of the DPP is to prosecute serious crimes in the name of the people, which essentially amounts to deciding whether to charge a person or not and if so, with what crime to charge that person.

All decisions to prosecute or not are final once made, and the reasons for the decision are not published (although this has changed to a very limited extent and might be further changed in the future). 

 

The Attorney General (“the AG”)

The office of the AG was created in 1924, and has been preserved by Article 30 of the Constitution. The AG is appointed by the President on the nomination of the Taoiseach, and is linked to that office, to the extent that the AG will resign if the Taoiseach resigns.

The AG is a legal adviser to the government and institutes and defends proceedings to which the State is a party.

 

Useful websites:

 

  1. The Supreme Court (supremecourt.ie)
  2. Courts Service of Ireland (courts.ie)
  3. Office of the Attorney-General (attorneygeneral.ie)
  4. Office of the Director of Public Prosecutions (dppireland.ie/)
  5. The Bar Council of Ireland (barcouncil.ie)
  6. The Law Society of Ireland (lawsociety.ie).
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Does the GDPR protect the citizen?

DPC

 

The GDPR – Data Subject Rights

 

The General Data Protection Regulation (the “GDPR”) will come into effect on 25 May 2018. As previously mentioned, the GDPR will be directly effective in each EU member state, with the aim that the same rules will be applied uniformly within the EU. This marks a shift in the approach to data protection at a European level, which until 25 May 2018 had relied on the individual Member States to implement the applicable Directives. In my previous blog I took a quick look at the overall effect of the GDPR. In response to a question about the effect it will have on an individual who thinks that an organisation has a file on him or her, I will try and explain what a private individual should be able to do in regard to controlling that data.

 

Overview of individual rights

Chapter 3 (Articles 12-23) is entitled “Rights of the Data Subject” with the Data Subject being the individual seeking to find out what personal data an organisation or government department (“the Data Controller”) has on him or her.

 

The GDPR extends a number of existing individual rights which individuals can exercise against controllers, as well as introducing a number of new rights. The focus on individual rights, and on the transparency and accountability principles which underpin all of the GDPR, put individuals and their rights at the heart of the GDPR.

 

As with most laws, they are only as good as their enforcement provisions, and it remains to be seen what practical and accessible means are available to a private individual to enforce his or her rights under the GDPR. Without an effective enforcement mechanism, all the lofty ideals in the world cannot help you.

 

Article 12(4) provides a first clue:

“4.  If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.”

 

In other words, it is very similar to the current FOI system. If the data controller does not cooperate, you complain to the regulatory authority, and if you get no satisfaction there, you can go to court. This is highly unsatisfactory as it is both time-consuming and expensive and therefore out of the reach of most citizens. It can be argued that this system is not a real enforcement at all, and in direct violation of the Aarhus Access to Justice provisions.

 

Another major problem that immediately occurred to me was how does one go about proving a negative? If you ask an organisation whether they have data on you, and they say that they do not, what can you do, legally, to prove otherwise? In other words, the GDPR should really create a presumption that if an organisation has had previous dealings with you, it shall be presumed until otherwise proven by the organisation (the data controller), that the organisation has your personal data.

 

Whether this can be reasonably enforced is another question. Given the cosy relationship between the government and big business / the banks, I cannot imagine any legislation being passed that will force a commercial organisation to lay bare all its databases so that we can have a scrummage around looking for any bits and pieces they might have on us.

 

It is against this background that we need to look at the individual rights created by the GDPR.

 

Right of access

In terms of Article 15 an individual has the right to establish whether a data controller processes information relating to him / her, and to access and obtain a copy of that data and certain additional information in relation to the processing, such as its purposes, the categories of data, the recipients of the data, and the existence of additional rights such as the rights to erasure and objection.

 

The Article makes it clear that this right of access is “not an absolute right”, and the exercise of that right cannot prejudice the rights of others.

 

I find the vagueness of these exceptions very troubling because they could be used to essentially negate any right an individual might think he or she has.

 

Again, the practicalities of enforcement are a cause for concern. The Article says that “The controller shall provide a copy of the personal data undergoing processing”. The word “shall” when used in legislation is known as a mandatory – you have to do it, there is no choice, and if you do not do it, you break the law. All well and good, but how do you force the data controller to give up those details without having to go to the “higher authority” all the time? And will the higher authority have the muscle and wherewithal to scour the controller’s databases for information on you?

 

Right to be forgotten

The right to have personal data rectified, blocked or erased already exists under current data protection law. They existed, but were hardly ever acted upon, because of the need for the individual to show that the data controller had contravened data protection principles. Once again this was often a matter of proving a negative.

 

Partly as a result of the Google Spain decision of the Court of Justice of the European Union, however, there has been much more emphasis on the right of erasure or “the right to be forgotten”, and the GDPR has put a fresh focus on this area.

 

Under the GDPR, every individual has the right to have his / her data erased, or the “right to be forgotten”, in circumstances where:

■ the data is no longer necessary for the purpose for which they were collected;

■ processing is based on consent, but the individual has withdrawn consent and there is no other legal ground for continued processing available to the controller;

■ an individual has exercised his / her right to object, and there is no overriding legitimate interest on which the controller can continue to legitimise its processing;

■ the data is unlawfully processed;

■ the erasure is required by a law applicable to the controller; or

■ the data was collected in connection with the offer of information society services to a child.

 

Once again Article 17 makes it very clear that this is not an absolute right. For example, the data controller will be allowed to retain your data “on the basis of freedom of expression and information”, whatever that might mean; for reasons of “public interest in the area of public health” or if the processing is required to “establish, exercise or defend legal claims” (would that include the original application to erase?).

Article 17 does not include any specific enforcement mechanisms.

 

Right to restrict processing

Article 18 says that individuals have the right to require that a data controller restricts its processing of his / her data in some circumstances, including where the data is inaccurate, the data is no longer required in light of the purposes of the processing but the individual requires the data in connection with legal claims, or the data subject has exercised his / her right to object (pending verification of any legitimate grounds of the controller which override those of the data subject).

What is meant by restrict? Article 4(3) defines it as follows:

“(3) ‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future”.

 

That definition begs the question.

‘Restriction’ = ‘Limiting’.

But what does “limiting” mean?

How long is a piece of string?

 

 

Right to object

As with the right to be forgotten, the right to object to processing already exists in the current Directive where an individual could object to direct marketing or processing for example, on the grounds that this direct marketing was “likely to cause unwarranted substantial damage or distress”.

In practice it was not used very much. Easier to delete and block the sender.

 

Under the GDPR, the existing right to object to processing continues, along with some clarifications and expansion. An individual can still object to direct marketing at any time, and in that event, the controller must stop using the information for marketing purposes. However, an individual can also object where:

■ retaining the data is no longer necessary for the purposes for which collected;

■ consent has been withdrawn and there is no other legitimate ground for processing;

■ unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims, the controller must cease the processing;

■ the data has been unlawfully processed;

■ erasure is required by either EU under a legal obligation to which the controller is subject under EU or member state law; or the law of the Member State;

■ the data was collected in the context of the provision of information society services to a child.

 

Automated decision making and profiling

Under the GDPR, an individuals will continue to have the right (created by the current Directive) not to be subject to decisions based solely on automated processing in a similar manner. Article 22 introduces additional restrictions to automated processing of special categories of data.

 

Profiling seems to be the main target, and the GDPR defines profiling as “any form of automated process to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements”.

 

There are exceptions to this blanket-like prohibition, and on paper they seem more restrictive than the current Directive. For example, under the Directive such processing was permitted in the course of considering ‘whether to enter into a contract’, or ‘with a view to entering into a contract’ or ‘for the performance of a contract’. Under the GDPR, automated processing will only be permitted, in the context of contract, where it is a “contractual necessity”, which is a more restrictive test with a seemingly higher threshold.

However, I would suggest that ‘necessity’ is a highly subjective concept. Some people’s luxuries are regarded as other people’s necessities, depending on, for example, your socio-economic standing or your business targets. Surely it is a contractual necessity for a business to chase your custom?

 

The other aspect that seems to have been beefed up is the question of consent. Where a controller seeks to rely on consent, it must be explicit consent to automated decision making. This really means a written consent (including e-mail and/or electronic signature) to the use of a specified piece of data for a specified purpose.

 

Portability

The right to data portability is a new right introduced by the GDPR, and allows individuals to obtain and, importantly, reuse their personal data. A data subject can either obtain the data him / herself, and, in turn, provide it to a third party (if he / she so wishes), or require the data controller to transfer the personal data directly to a third party.

 

Compliance with individual requests

Individuals must be in a position to exercise their rights free of charge, and a controller must respond (and comply) to a request without undue delay, which means within one month, with a maximum two month extension depending on the complexity and the number of requests.

The GDPR does insist that all these transactions are done electronically, but it does say that data controllers must provide the means for electronic requests, in particular where the data is processed by electronic means. In other words, a data controller can still shower you with paper, but this is frowned upon.

 

Transparency

The increased transparency required under the GDPR means that individuals must be clearly and fully informed of their rights. The burden of proof is on the data controller to demonstrate compliance. This will have a substantial impact on the content of the ‘small print’ (notifications and privacy statements), but it will still be small print, so read it carefully before committing to anything.

An Irish organisation called the GDPR Awareness Coalition have produced this very handy infographic outlining the basic rights of the data subject:

GDPR

The EU Commission has also produced some handy visual material explaining your rights.

 

 

Enforcement and sanctions under the GDPR

 

Onto the big question: Can these rights be effectively enforced or will they be evaded with ease or too expensive and difficult to pursue?

 

The approach to penalties under the General Data Protection Regulation (GDPR) seems to follow a tried and tested formula: the Big Stick. The financial penalties are stiff: offenders can be hit with fines of up to 4% of total global annual turnover to a maximum of €20 million.

These tough penalties have certainly grabbed the attention of the media, which is a good thing, as Big Business cannot feign ignorance.

The big question is how will the Irish Supervisory Authority wield this big stick? The other question is to what extent will the Irish Supervisory Authority co-operate with the Supervisory Authorities of other EU Member States to protect the rights of its citizens dealing with foreign enterprises?

 

Powers

Under the GDPR, Supervisory Authorities are given a number of powers which can be placed into two broad categories: investigative and corrective (punitive).

 

Supervisory Authority investigative powers include:

  • to order the controller/processor to provide any information;
  • carry out data protection audits;
  • review certifications;
  • notify controller/processor of any alleged infringement of the GDPR;
  • obtain from controller/processor access to all personal data and all information necessary to perform its tasks; and
  • obtain access to any premises of controller and processor including data processing equipment.

These powers are extensive and if used properly could do a lot of good in protecting the rights of the citizen against invasive or unlawful data collection practices.

 

Supervisory Authority corrective powers include:

  • issue warnings or reprimands to a controller or processor where processing operations have infringed provisions of the GDPR;
  • order the controller or processor to comply with the law;
  • order the controller to communicate a personal data breach to the data subject;
  • impose a temporary or definitive limitation including a ban on processing;
  • order the rectification, restriction or erasure of data or order a certification body not to issue a certificate;
  • impose fines (which should be “effective, proportionate and dissuasive”);
  • order the suspension of data flows to a recipient in a third country or to an international organisation.

 

Importantly, it can be seen that a lot of these powers can be applied to both data controllers and data processors. This might become very important as one of the major loopholes of current data protection legislation is that processors were calling themselves controllers and so evading large sections of the law. It would have been nice if the GDPR had completely collapsed the distinction between controllers and processors, but at least it is a start.

 

While it is much too early to tell how different Supervisory Authorities will use these powers, it seems virtually inevitable that there will be a range of approaches across Member States. Although this is a Regulation, it is silent on a number of aspects which will have to be dealt with by the laws of the particular Member State.

 

The most obvious of these will be what (if any) criminal sanctions will be imposed on offenders who infringe the GDPR?   Whilst fines might seem huge, the maximum values do not have to be imposed, and it might be that there will be better compliance if individual directors could face jail time.

Again, Irish governments have an extremely poor record when it comes to prosecuting big business for financial crimes, so it is unlikely that this will change to any large degree.

 

What is clear is that from an EU perspective, the Supervisory Authorities in the different Member States will need to co-operate closely to have any hope of the GDPR being an effective mechanism, given the truly international nature of electronic commerce. We can only hope that Ireland lives up to this expectation.

Our Data Protection Commissioner (who will be the Supervisory Authority in Ireland) has been somewhat hampered by the very clumsy provisions of the Data Protection Act when it comes to prosecuting offenders. Hopefully the GDPR will to some extent fill this large gap in our law, or at least provide the impetus for a complete overhaul of our existing law which needs to be replaced by a system with teeth.

 

Posted in GDPR; Data Protection; Individual Rights | Tagged , , | Leave a comment

Who’s Afraid of the GDPR?

being followed

The GDPR – how will it affect us?

I have been inundated with questions about the upcoming General Data Protection Regulation (GDPR).

My default excuse of “I haven’t had time to look at it yet” was wearing a bit thin, so I decided to make the time to have a (very quick) look at it and attempt to answer the FAQs, starting with most asked to some others that raised interesting points.

Q: “Is this an attempt by our neo-nazi Irish Government to infiltrate us and destroy us from within?”

(Yes, this was the most-asked question. I substituted the phrase ‘neo-nazi’ for more offensive expressions).

Just to be clear, the Irish Government is a fairly passive player in this whole thing. In fact, there are certain aspects of the GDPR that must be scaring the bejaysus out of the Government. More on that later.

As the GDPR is a Regulation, it has “direct effect”, which means it automatically becomes Irish law on its commencement date, simply by virtue of Ireland being a member of the EU.

This is unlike the other source of EU law, the Directive, which allows the Member State quite a long time to implement it, and the Member State is also allowed to modify the contents to align it with its own national law, as long as the national law maintains the core values and spirit of the original Directive.

Irish governments do have a bit of a reputation for delaying the implementation of Directives for as long as they can or even after holding out after the final date. They also are often guilty of diluting the core values, or in the case of Aarhus for example, actually removing some of the best bits to the detriment of its citizens.

They are certainly not the only EU Government guilty of such shenanigans, and the EU decided to avoid all that nonsense this time by supplying the law through a Regulation.

In other words, this is something imposed on all Member States by the EU. I say imposed, but there would have been a huge amount of talks and backroom deals being done before the EU Parliament could agree on the final draft. The GDPR really is a collective effort, rather than the work of some evil genius sitting in a chair stroking his cat.

The official reasons provided by the EU Commission for replacing the Data Protection Directive (Directive 95/46/EC + Directive 2002/58/EC) with this Regulation were as follows:

  • “eliminating inconsistencies in national laws”;

  • “raising the bar to provide better privacy protection for individuals”;

  • “updating the law to better address contemporary privacy challenges, such as those posed by the Internet, social media, mobile apps, cloud computing, “big data,” and behavioural marketing, that were in their infancy when the Data Protection Directive was drafted”;

  • “reducing costly administrative burdens for companies dealing with multiple data protection authorities.”

In other words, the primary policy objective is uniformity across the EU with regards to government departments and online businesses keeping all your personal information for years on end so they can bombard you with email advertising. I personally applaud this, given how often we are doing electronic transactions etc. with people in other countries or completing electronic questionnaires for some or other government department.

Q: “Can the GDPR be used to find out details about fund-raising for example?”

No. The GDPR is all about “personal data”.

Personal Data is defined in the Definitions section of the GDPR as:

“ … any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”.

 

The first thing to notice is that this is only about information on a “natural person”. This means a flesh-and-blood human being. It does not include organisations or juristic persons (a person ‘created’ by the law so it can sue or be sued in its own name – a company being the most well-known example).

The main thrust of the GDPR seems to be to force governments and businesses to not hold onto personal information about citizens or clients and where they do have to hold onto some information about you, to anonymise that information, or if that is not possible, to secure and safeguard that information from any outside access. Its main stated objective is to stop the government or businesses from “profiling” people, either with regard to things like their political beliefs or their consumer trends.

A person will be entitled to approach any government department or business and ask them if they are holding personal data about that person and furthermore insist that it destroys that personal data that they are holding unless they can show that it is necessary to achieve the legitimate purpose for which that data was originally gathered (unless that person specifically consents to the department or business continuing to hold onto that personal data for use in a specified future activity).

Article 6 of the GDPR explains these parameters of fair use of personal data:

Lawfulness of processing.

  1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(a)  the data subject has given consent to the processing of his or her personal data for one or more specific purposes;

(b)  processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

(c)  processing is necessary for compliance with a legal obligation to which the controller is subject;

(d)  processing is necessary in order to protect the vital interests of the data subject or of another natural person;

(e)  processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(f)  processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.”

It is also interesting to note that the definition of “personal data” is attempting to eliminate the huge confusion caused under the current Directive when attempts were made to define what was meant by “personally identifiable information”. Adding the phrases “location data” and “online identifiers” to the existing language of the Directive makes it more likely that the Regulation will capture various forms of identifiers used in mobile devices and apps, advertising networks, and website analytics (infamously used by big providers like Google and social media like Facebook for commercial and content profiling – the so-called ‘knowledge algorithm’).

The existing Directive already allows data subjects to opt out of direct marketing, and it requires transparency if there are automated decisions such as computers declining transactions based on risk scores. These provisions are expanded in the Regulation, in sections entitled “Right to object” and “Measures based on profiling” (Articles 19 and 20). Automated decisions must include safeguards such as an appeal to a real human. In addition, automated decisions (i.e. by a computer) cannot be based solely on the defined sensitive categories (mentioned below) of personal data such as race and health.

An indirect benefit of the GDPR is that it will hopefully stop a lot of people living in an information bubble where they were only exposed to news / information that they would find “agreeable” (i.e. consistent with their beliefs/prejudices/religion). I suppose if a person specifically asks for that information bubble to be created, that will constitute consent, which means I am being ridiculously optimistic. People generally want their beliefs and prejudices confirmed, not challenged, hence the massive growth of Facebook and Twitter.

Article 9 carries over from the Directive the concept of “special categories” of especially sensitive data concerning race or ethnicity, political opinions, religious or philosophical beliefs, trade union membership, health, or sex life. These types of data collections are expressly prohibited in the general sense. Where such collections are necessary, they generally require express consent or a legal obligation in order to collect or process the data, and they require heightened security and attention to data storage limits. The Regulation adds genetic and biometric data to the categories of sensitive data. This will clearly include membership of community (non-commercial) organisations that are organised around a political, social or religious belief.

The law is fairly clear on the point that fundraising is not a commercial activity (which is why charities are now being closely watched after the recent scandals involving some high profile Irish charities). The collection plate at Sunday mass will never be legally classified as a “commercial activity”! There is therefore little chance that somebody who dropped a euro into the collection plate will now have the right to ask for that information, and even if they did, they could only ask that you delete the reference to the fact that they were a contributor. This is not like the FOI laws, it is about not storing and/or removing personal details, rather than trying to reveal details that somebody else is trying to hide.

Q: “Is this an attempt to emasculate NGOs, especially environmental / conservation / community groups?”

I could really just answer ‘no’, but I know that would never satisfy the conspiracy theorists among you, so here goes:

This is really a two-fold question. The one obvious fear is that people are concerned that the government will be able to infiltrate and destroy community groups from within by having access to their data. The second fear seems to be that the community groups (including their FB pages, their blogs and their newsletters) will be regarded as Data Controllers and therefore be susceptible to requests (from the wind industry for example) for what they would regard as sensitive information?

In this regard, notice must be had to Clause 18 of the Preamble, which says:

“(18) This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or 4.5.2016 L 119/3 Official Journal of the European Union EN (1) Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium‑sized enterprises (C(2003) 1422) (OJ L 124, 20.5.2003, p. 36). (2) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).

Household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities.”

(My emphasis)

I would argue that this should exclude FB pages and blogs, depending on the interpretation of the phrase “no connection to a professional or commercial activity” and just before it: “purely personal or household activity”. So for example, the fact that I am a law lecturer by profession, does that mean if a write a (non-commercial) blog with legal content that there is a connection to my professional /commercial activity?

I doubt that very much, as that would be an incredibly expansive interpretation of that clause. As neither phrase is defined in the Definitions section, they must be given their ordinary everyday meaning. I would argue that this involves public authorities / government departments and/or commercial organisations who are operating for profit or some other material gain. It cannot and should not be extended to private or personal activities that a person does at home without the primary aim of making money.

The definition of “enterprise” in the Definition section of the GDPR as meaning a “natural or legal person engaged in an economic activity, irrespective of its legal form, including partnerships or associations regularly engaged in an economic activity” seems to support the view that this Regulation concerns government departments and commercial businesses.

The related question is whether a government department or agency, or a business (like a wind farm) could seek information from a community group engaged in opposing that government or business?

 

This GDPR is not replacing the Freedom of Information legislation (including the freedom to environmental information legislation). Its purpose is different to typical freedom of information legislation. The purpose of the GDPR is to empower a citizen to have the right to demand to know what personal data is being held about him or her, to be told what is the reason for holding that personal data, and if that personal data is being held purely on the basis of consent, to allow the person to withdraw that consent or at least challenge the retention of their personal data.

In other words this is not so much about asking a government department or business to disclose information per se, but rather to disclose the extent of their information on you, and to justify their holding onto it after it was used for its initial or original purpose.

Therefore the GDPR is going to be used by private individuals against government departments or commercial organisations, but not the other way around.

Another clue is the fact that the GDPR says it is also applicable to organisations outside the EU (for example the USA and China) where those organisations practice personal data processing that relates to “the offering of goods or services to data subjects (individuals) in the EU or the monitoring of their behaviour”.

This interpretation is confirmed by the definition of “controller” (i.e. data controller):

‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;”

Whereas the person identified by the personal data was clearly defined as an individual  flesh and blood human being, the definition of ‘controller’ is very wide and embracing. Public authorities are expressly included, and the more general description of “other body” can be linked to that commercial or economic activity that we talked about earlier, i.e. businesses. I do not think that a non-commercial / charitable / political NGO can ever fall into that net. That is clearly not the objective of this Regulation.

Another clue that this only covers the government and big business is that Articles 35-37 stipulate that an  organization must appoint a data protection officer (DPO) if it employs “250 or more persons” or if its core activities require “regular and systematic monitoring of data subjects”.

This has been a very quick glimpse at the GDPR. It is most definitely not meant to constitute legal advice, nor is it a particular comprehensive commentary on a huge document (the PDF file is 88 pages of tiny print). I simply identified a few of the questions that I have been routinely asked by individuals and organisations that I help, and I have attempted to shine a little light on those aspects.

Posted in Apple; Google; Data Centre, Cloud; iCloud; Data Centre; Data Center, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, lobbying; democracy; political process; general election, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Press Freedom, Profiling; Data Collection; Information Algorithm. | Tagged , , , , , , , , , , , | 2 Comments

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