Call McGarr Solicitors on: 01 6351580

Faulty PIP Breast Implants: Questions answered

I have PIP Breast Implants, what is my problem?

You have a medical problem and, consequently, a legal problem. The medical problem exists because the breast implants are almost certainly defective.

Why do you say the PIP Breast Implants are “almost certainly” defective?

Poly Implants Prothese SA. (“PIP”), a French company, bought the silicone and, since 2001, used it, fraudulently, to manufacture most, if not all, of its human breast implants.  These implants were, in turn bought by various clinics and doctors and offered for use to Irish women.

In what way are the PIP Breast Implants defective?

The defect lies in the fact that the silicone of which they were made was intended by the silicone manufacturer for use in mattresses, not in human breast implants. It is believed that the PIP breast implants have a higher than average rate of rupture than rival, safe, products.

Is this a serious defect in the PIP Breast Implants?

If the breast implants do not rupture, it is probably not a problem. However, in all cases of fraud, as this one is, it is not possible to exclude the possible presence of toxic substances in the breast implants. If that is the case the problem is not just serious, it is serious and acute.

What is the advice of the medical profession?

“The medical profession” does not have anything to say about PIP breast implants. Sources of opinion with medical qualifications on the issue range from the French, UK and Irish regulators to the doctors or clinics that fitted the breast implants. Each of these sources is, to a greater or lesser degree, conflicted.

What do you mean by “conflicted?

This is where your medical problem becomes, in part, your legal problem. There are reasons to think that the regulators, in their respective ways, were not up to the mark in addressing the problem, either in anticipating it, or in responding to it. More importantly, the doctors or clinics that fitted the breast implants should not be consulted on the correct medical or legal response for you to take now.

Whom should I consult?

You should consult a cosmetic or plastic surgeon who has never fitted a PIP breast implant in a patient. You should bear in mind that he or she will be awaiting, like you, the outcome of various investigations into the health implications of the fraudulent use of non-medical grade silicone in human implants.

Should I consult anybody else?

You should consult a solicitor. Don’t forget, you have a legal problem.

What is my legal problem?

Put bluntly, you are going to, sooner or later, suffer loss arising from this problem. The first loss is the cost of getting medical advice now. When a decision is made by you to have the PIP breast implants removed, there will be a cost to that. Then you will probably require replacement breast implants fitted (in the same operation, presumably). That is another element of the medical costs that cannot be avoided. These medical operations, although elective, are imposed on you by the crisis and will entail pain, suffering and inconvenience as well as direct costs. You are entitled to compensation for that pain and suffering.

Who is going to pay me my compensation?

The person or persons that you successfully sue will, if they are solvent, pay you your damages.

Whom should I sue?

Well, you do have a cause of action, or legal basis of claim, against PIP, but it is defunct and under criminal investigation in France. There is no point in suing PIP unless you are certain to receive compensation at the end of your litigation. Instead, you should examine your legal relationship with the clinic or doctor that fitted the PIP breast implants.

Why? Surely they knew nothing of the PIP fraud?

That is irrelevant to any liability they may have. Their liability arises in the law of contract. The PIP breast implants were fitted in consideration of payment by you. That constitutes a contract between the clinic/doctor and you. The Sale of Goods Acts 1893-1980 will apply to this contract. Under Section 14 (2) of the Acts, a condition is imported into such contracts, that the goods are of “merchantable quality”. This means that the goods must be fit for the purpose for which they are commonly bought. Under Section 14 (3) of the Acts the goods must be as durable as it is reasonable to expect. Your burden of proof is to establish that, on a balance of probability, the breast implants were and are unmerchantable. You would do this, if the defendant denies it, by evidence from an expert. Liability under the Sale of Goods Acts 1893-1980 is strict. A retailer (in this case a medical clinic) cannot successfully plead that the defect in the product was not its responsibility. It is responsible for both patent and latent defects.

Will I have to go to court?

Yes, in principle. The Injuries Board has no role in such disputes. You will have to give evidence of the contract you made with the defendant/s and the additional costs they have imposed on you, but the significant evidence, if the defendants refuse to settle the claim, will come from your expert.

How long will it take?

That depends on the response from the defendant/s. If you go all the way to the door of the court, it might take twelve months.

Rubbish

It is not usual to have a very clear piece of balderdash in an Act.

Here is one in the Credit Institutions (Stabilisation) Act 2010.

Section 4 of the Act recites the purposes of the Act, including:

(c) to continue the process of reorganisation, preservation and restoration of the financial position of Anglo Irish Bank Corporation Limited begun with the Anglo Irish Bank Corporation Act 2009

Anglo Irish Bank no longer exists. It is now called Irish Bank Resolution Corporation Ltd. and it will never be “restored” to its “financial position” or any other position.

 

What do lawyers do?

Irish lawyers do many things. Some of them work for rentiers. Some of them work for big business. Some of them work for farmers. Some of them work exclusively in criminal prosecutions, for the State and State bodies. Some of them work exclusively in criminal prosecutions, for the defence. Some of them are unemployed.

Some of them work in politics as politicians. In his book, “The Burden of Responsibility” Tony Judt examines one of those, Leon Blum. Leon Blum was a lawyer, albeit French. Judt contrasts him with the other lawyer-politicians.

He says:

“At a time when most French politicians were either mediocre provincial worthies or else phrase-making businessmen and lawyers cynically unconcerned with ideas or ethics, Blum stood alone.”

A lawyer could be like Blum, or be “…unconcerned with ideas or ethics”.

No fair person could think that the lawyers at Public Citizen lack ideas or morals. They have campaigned for a long time against the use of arbitration to ensnare ordinary people. They say;

“People who have been harmed by fraud, predatory lending, discrimination, negligence, defective products or scams should not be forced into arbitration: they should have a choice.”

(Most people would think that “reckless lending” and “predatory lending” are, invariably the same thing. If so, predatory lending is lawful in Ireland. See ICS Building Society v Grant [2010] IEHC.)

Ireland recently expanded the possible use of arbitration here. Of immediate interest are Sections 21 and 31 of the Arbitration Act 2010.

Section 21 effectively disables any attempt to disentitle consumers to an order for costs in an arbitration where the consumer is successful in the arbitration.

Section 31 effectively disables any attempt to force consumers into arbitration where the dispute is for a claim exceeding €5,000.

The implications are clear; if you are a consumer and you bought a product or a service [and your claim exceeds €5,000 in value] you can and will be bound by any arbitration agreement in the “standard” agreement you made and you will be liable for the costs of the arbitration if you are unsuccessful.

Yes, you will need a lawyer or even lawyers, if you find yourself in this kind of trouble. Lawyers, regardless of what they are doing, are doing it to earn their living, among other things. Get ready to pay for the service and remember why you needed the service in the first place.

SOPA Ireland Duck Hunt: Killing Canards

Canard: An unfounded or false, deliberately misleading story; a duck.

“I will introduce this imminently, by the end of January.”
-Sean Sherlock, Sunday Business Post, 23rd January 2012

First, I’d to clarify that Minister of State, Sean Sherlock TD, has
emphasised that he has not put forward any proposals to enact a “Stop
Online Piracy” type Law.

– He intends to bring in a vaugely worded law permitting copyright holders to seek injunctions without any explicit safeguards for fundamental rights, including injunctions to block access to websites for Irish users. He may not have called it SOPA Ireland, but let’s not listen to whinges about the characterisation.

Second, I’d like to emphasise that the need to legislate arises from a finding of the High Court in October 2010 that Ireland was not in
compliance with its EU obligations under Copyright Directive 2001/29/EC as the High Court found itself unable, under existing primary legislation, to
grant an injunction against an intermediary.

-Actually, the urgent impulse to legislate comes from the case of EMI Records [Ireland] Ltd and Ors -v- Ireland and Anor which was filed on the 10th Jan this year.

As you will appreciate, failing to be in compliance with our obligations under EU law is a very
serious matter.

– Well, it is the European Commission’s job to police breaches of EU law. They haven’t even said they think there is one here. So, they don’t seem to think it’s that serious. Or, if you prefer, they don’t think we’re not in compliance. Which also wouldn’t be that serious.

Third, I believe it is important to emphasise that no policy change is proposed in the Statutory Instrument. It had been the intention of the Copyright and Related Rights Act, 2000 to provide civil remedies such as injunctions and it was assumed that the Act did, in fact, provide for such remedies until the High Court found otherwise in the case of EMI Ireland & others v. UPC in October 2010. The wording of the proposed Statutory Instrument has been framed in a way which gives effect to the wording of the EU Copyright Directive rather than extending its scope.

-Changing a law is far more significant than changing a policy. It was assumed the original Act did something. Then a court found it didn’t. The SI is now being assumed to do something. A pity that all this assuming can’t be replaced with an explicit statement of what the law should do.

The intended purpose of the proposed Statutory Instrument is not to enact new EU legislation but, rather to restate the position that was though to exist in the Copyright legislation prior to the EMI Ireland case.

-Well, sure. But then, that was the intended purpose of the original act. Look where intending things got us there.

Last July Minister Sherlock held a public consultation in relation to the wording of a proposed Statutory Instrument amending Section 40 of the Copyright and Related Rights Act, 2000. More than 50 submissions were received from interested parties, providing an excellent overview of all the issues and concerned involved. Minister Sherlock has engaged extensively with interested parties in respect of their views and concerns.

-Odd. Here’s a letter sent from our office on 20th October 2010. We never got an invite.

At the time, the then Minister was only talking about meeting “both sides”- the record companies and the ISPs.
Sean Sherlock took the same “both sides” line on Drivetime with Michele Neylon.
Mind you, after 80,000 people pointed out they were also concerned with his intentions, he arrived at a new formulation “I reiterate this is about balancing the rights of Internet users, Internet businesses and the copyright holder”

The legislative measure is expected to be introduced shortly.

– I think this is where we came in.

Defective Breast Implants

McGarr Solicitors have considered the problems of Irish women who have been fitted with breast implants manufactured by Poly Implants Protheses SA. (“PIP”).

You can read our views on our other website Personal Injury Ireland.

 

SOPAIreland Alternative Ministerial Order: Jam Today as well as Jam Tomorrow

Minister for State Sean Sherlock is in an unenviable position.

On the 10th of Jan 2012 his government was sued by EMI Ireland for their claimed losses arising from his alleged failure to provide for injunctive relief.

On the 17th January the Chief State Solicitor entered an appearance to that claim. That means the State then had 21 days to put in a defence.

By my, admittedly shaky calculations, this means the State has until the 5th February to enter a defence. They would like, as part of this defence, to say that they have already passed a law bringing in the change EMI have demanded.

This is why the Minister has correctly conceded a debate, while asserting he will still sign an SI at the end. He has a gun to his head.

He simply doesn’t have time to bring forward the primary legislation this matter so urgently requires before the deadline imposed by EMI.

It is difficult to have a full and calm discussion with a hostage.

For this reason, we suggested that a hybrid approach to the knotty problem might be the best outcome from this week’s extraordinary events.

Independent TDs Catherine Murphy and Stephen Donnelly delivered the text of an alternative Statutory Instrument to the Minister today. The aim was to meet the immediate needs of the Government in their requirement to have a law implemented, which ensuring that that law reflected the fundamental rights of businesses and internet users in its implementation. Furthermore, this alternative text provided for what is known as a ‘sunset clause’.

This clause would see the alternative Order effectively self destruct in 2 years time. This would provide plenty of time for the government to address these absolutely critical issues with a full and open debate followed by proper primary legislation, subject to full scrutiny by the Oireachtas.

Nothing the Minister sought in his draft SI has been removed. The additional safeguards of fundamental rights are those which he has already committed himself to, arising from European Court case law. And the implementation the State believes is prudent before the 5th February deadline will still have been achieved.

We look forward to the Minister’s response to this constructive suggestion in the debate, starting now.

The text of our proposed alternative SI, drafted by TJ McIntyre
****

DRAFT OF

STATUTORY INSTRUMENTS

S. I. No. ___ of 2012

____________

EUROPEAN UNION (COPYRIGHT AND RELATED RIGHTS) REGULATIONS 2012

To be made by the Minister for Jobs, Enterprise and Innovation.

I, _____________, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, hereby make the following regulations:

1.​These Regulations may be cited as the European Union (Copyright and Related Rights) Regulations 2012.

2.​The Copyright and Related Rights Act 2000 (No. 28 of 2000) is amended –

(a)​ in section 40, by inserting the following subsection after subsection (5):
“(5A)​(a)​The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

(b)​in section 205, by inserting the following subsection after subsection (9):
“(9A)​(a)​The rightsowner of any right conferred by Parts III and IV may, in respect of that right, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

3.​These Regulations shall cease to have effect on 31 January 2014
GIVEN under my Official Seal,
____________ 2012.

_________________________
Minister for Jobs, Enterprise and Innovation.
O.J. No. L. 167, 22.6.2001, p.10.
O.J. No. L. 167, 22.6.2001, p.10.
O.J. No. L. 167, 22.6.2001, p.10.

PAGE

PAGE 3

Making the SOPA Sausages

Bismark reputedly said that nobody should get too close to the making of laws or sausages.

On Thursday, on behalf of the StopSOPAIreland.com campaign, I took a trip to Leinster House, to catch a glimpse of the sausage machine at work.

Together with Ian Bergin, who runs the Facebook campaign, and TJ McIntyre of DRI, I met with Catherine Murphy TD to discuss her scheduled exchange of questions with Minister Sherlock.

We experienced the minute-by-minute changes of timetables and proposals in relation to the disputed Ministerial Order.

We had originally believed that there would be a full debate that day on the matter. Instead, on arrival, we learned that instead there was to be a tightly structured 8 minute exchange of statements between Derek Keating for FG and Catherine Murphy for the Technical Group of Independents.

To put it at its lowest, this didn’t really seem to meet the needs of the situation.

Nonetheless, there was still the possibility being held out of a further, fuller debate. But when that debate might be- including rather incredibly, whether it would be held before or after the law had been signed- was subject to, um, flux. In all senses of the word.

While we were in the building, we took the chance to bend the ear of any friendly faces we happened upon. They all told us that the issue of the SOPAIreland Order had become one of the hottest potatoes in the Dáil in a bewilderingly short time. One TD told us that, a week ago, this proposal hadn’t had any kind of attention.

“But now…” he said, trailing off.

More than one TD spoke about getting hundreds of emails and what did or didn’t work as a lobbying tactic. Being civil was good. Basing an argument on logic, rather than threats was another point that got the thumbs up. (This was contrasted with what might have worked in the, shall we say, recent past). All expressed dismay at the impact of hundreds (or 50,000) of emails all arriving into an individual’s inbox. “After a couple of hundred, you’re just hitting delete.”, we were told by a TD’s assistant.

I suggested that the TDs offices were probably experiencing the inevitable consequence of the lessening of friction inhibiting communication between constituents and their representatives. Our campaign emails (ie your emails), it was acknowledged, were of a sort not usually seen. “These people, they represent a usually silent group – the people who really know about the internet”, as one other TD described them.

We then decamped to the Visitor’s Gallery, in time to see Catherine Murphy’s opening question to Minister Sherlock. I needn’t describe it for you- here’s the video:

SOPA Ireland in the Dáil

Today started with more Digital Rights Ireland business- of the courtroom kind– before easing off a little. The Minister had rounded off the night before by confirming that he would hold a Dáil debate before, rather than after, the passing of the SOPA law into force.

That he had been unable to confirm that order of events on Thursday gives a little peep into the kind of day he’d been having.

By 4.50 today, Catherine Murphy TD (a former client) was able to confirm that the debate would go ahead on Tuesday evening at 5.30pm and last 50 minutes.

Just received word that next week's debate on #sopaireland will take place on Tuesday at about 5:30pm. May be subject to change.
Friday, January 27, 2012 4:50 pm via webReplyRetweetFavorite
@CathMurphyTD
Catherine Murphy

Last week, this law wasn’t going to be published.

Last week, there was no media attention for this proposal.

Last week, there wasn’t any possibility of the matter going to Cabinet to be discussed.

Last week, the idea of a Dáil debate on this Ministerial Order would have been absurd.

“But now…”

Thank you all.

Message from Minister Sean Sherlock to All TDs and Senators

Sent this evening.

Legitimate Copyright Protection in Ireland: not SOPA – Sherlock
We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with. Ireland is home to some of the world’s most innovative internet companies and we are determined to grow our reputation as a location where smart people and these smart companies can continue to innovate in this fast moving arena.
The last thing innovators need is a culture where the outputs of their creative endeavours have to be locked away or kept secret for the fear of theft. Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.
Going right back to 22 December , 2002, the date by which every EU Member State had to have implemented Directive 2001/29/EC, every EU country has had to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right”. Having that provision enshrined in EU law and the laws of Member States for a decade has not restricted the development of the Internet or innovative internet companies. On the contrary, the Internet has flourished.
It may be useful to explain the background against which the requirement for the amendment to the Copyright and Related Rights Act 2000 has arisen. In the EMI & others versus UPC High Court judgment of 11 October 2010, Mr Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and thus could not grant an injunction to prevent infringement of copyright against an information service provider (ISP) in the circumstances of “mere conduit” (transient communications). In doing so, he stated that Ireland had not fully transposed the relevant EU Directive(s). As you will appreciate, non-compliance with EU law is a very serious matter.
The “Mere conduit” principle provides that if an ISP does not initiate a transmission, or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a “safe harbour” against liability, by virtue of the e-Commerce Directive [2000/31/EC]. However, according to the same directive, this freedom from liability does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.

As far as can be ascertained from the judgment (the State was not a party to the case), the type of injunction sought was to require UPC to prevent infringement of the record companies’ sound recording copyright, through its internet “peer-to-peer” services, possibly involving a “three strikes and you’re out” scenario. This is where the ISP sends three warnings of increasing severity and if the infringement continues, discontinues access to the Internet. It is sometimes referred to as a “graduated response”. I understand that blocking access to infringing online sites may also have been sought.

Two EU directives (the Copyright Directive 2001 and the Enforcement Directive 2004) require that the holders of copyright – authors, music composers, lyricists, record producers etc. – are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

The Department of Jobs, Enterprise and Innovation had considered that injunctions were available under Section 40 (4) of the Copyright Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. However, this was not Mr Justice Charleton’s view. The record companies did not appeal the High Court decision and, consequently, the State has not had an opportunity to put forward its views on the legal principles involved nor on the construal of the relevant sub-sections of the Act, which we feel were not fully explored in the judgment.

The Attorney General’s Office was then asked (both by this Department and Department of Communications, Energy and Natural Resources) for its advice as to the implications of the High Court judgement. The prudent course, he advised, would be to introduce a Regulation to ensure compliance. After consultations with the Attorney General’s Office and the Department of Communications, Energy and Natural Resources, this Department launched a public consultation on the text of the proposed Statutory Instrument. The consultation attracted over 50 submissions from interested parties. For the avoidance of doubt, the Government has decided to introduce a Statutory Instrument to restate the position that was considered to exist prior to this judgment.

Concerns have been expressed that the proposed Statutory Instrument mirrors the Stop Online Piracy Act (SOPA) in the United States. These concerns are not based on fact. The purpose of the Statutory Instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU Directives cited above. It should also be noted that such injunctions are available in all other Member States of the European Union by virtue of the two Directives already referred to. In granting such injunctions the courts must take account of Court of Justice of the European Union judgements. These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and information.

In proposing to amend the legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, accordingly, am simply seeking to ensure Ireland’s continued compliance with its obligations under the relevant EU Directives following the decision of the High Court in the aforementioned UPC case.

I trust that this information will clarify the issue.

Stop SOPA Ireland: We must have Openness, not murky backroom deals

You will have noticed the black banner across the top of our site this week.

You may also have noticed the sudden flurry of media appearances and debates on radio around the issue of Minister of State Sean Sherlock’s plan to introduce a law to allow the music labels (and other copyright holders) to seek injunctions forcing Irish ISPs to block access to sites they don’t like.

“I will introduce this imminently, by the end of January.”
– Minister Sherlock, Sunday Business Post, 22nd Jan 2012

This SOPA Ireland law, as it is is called, is similar to the proposals defeated in the US only a week ago after a mass uprising of grassroots protest- first from Reddit, and then joined by the biggest names on the net- Google, Wikipedia and so on.

However, unlike that US law, people here can’t even expect to have this blocking law debated in their legislature. The Minister has said that he intends to deal with the matter by way of a Ministerial Order. Nor has he published the text of the law. The first we, the people of Ireland, will know about the text of this law will be when it is signed and brought into force.

This is grossly wrong. This is why we were so enthusiastic when Sabrina Dent suggested that we launch a petition website to let other people (a) know what was going to happen and (b) tell the Ministers responsible that they object to the proposal.

That was long, long ago now. Monday morning to be exact. Since then, 30,000 people have emailed the Minister for State Sean Sherlock and Minister Richard Bruton at the Department of Jobs, Enterprise and Innovation to tell them they DO NOT WANT.

I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:

– Opening paragraph of the leaked Draft Text of the Ministerial Order

Minister Sherlock has been traveling around the airwaves acting as a recruitment sergeant for the petition by providing worrisome, self contradictory, “reassurances” about what he intends to do.

All in all, so far, our Public Interest Campaign site has facilitated a very successful piece of civic action.

But more will need to be done. Minister Sherlock has said that he intends that Richard Bruton will bring the Ministerial Order to Cabinet.

This is, to put it mildly, unusual.

A Ministerial Order (otherwise known as a Statutory Instrument) is only intended to bring in secondary legislation -ie, tidying up the administrative side of policies and laws already passed through the Oireachtas after proper debate.

On 29th July 2011, the Minister was put on notice of this difficulty when Digital Rights Ireland (our client) wrote to his Department;

It is significant that Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be “democratically legitimised” (at para. 113).

It would be undesirable in any event for a matter dealing with fundamental rights to be disposed of by way of secondary legislation. It is all the more undesirable in this case, however, given the vague and open-ended nature of the powers involved. This is, in effect, a case of delegation heaped on delegation – rather than rules governing blocking and other remedies being made by primary legislation, or even secondary legislation, they are instead effectively being made by delegation to the judiciary.

The new plan to bring the matter to cabinet is an admission of the truth of that argument. But a discussion behind closed doors amongst a handful of Ministers is not good enough.

If a matter is so significant, contentious and complicated that it must be debated by Cabinet, by definition, it is not a matter which is suitable to be brought in by Ministerial Order without public debate and without careful scrutiny of the proposed text.

Ministers Bruton and Sherlock must now bring a Bill before the Oireachtas and let the sunlight in. This issue is too important to be left to the murk of backroom deals.

 

More about the Injuries Board

  1. The number of applications to the Injuries Board has increased steadily over the last five years. However, the rate at which the respondents are agreeing to an assessment (by paying the required fee) is not keeping pace with this increase. In short, the respondents are not engaging in the Injuries Board system with the same enthusiasm as time passes.
  2. Each year the Annual Report of the Injuries Board tells us the Fee income from applicants and from respondents, respectively. It also tells us, somewhere, what the fees are for each.
  3. So, for 2010, we can calculate that there were 25,767 applications to the Injuries Board. (The Board claims there were 26,964). In that year, only 12,732 respondents paid a fee. (The fee was €1050; it was reduced in 2011). That means that 13,035 applicants, more than half, were left without an assessment. (They get a certificate of authorisation instead).
  4. The Injuries Board persists in using the word “award” when it means “assessment”. We know this because it also refers to “accepted award”. This use of language is misleading.
  5. Taking this into account, we can see that the figure for acceptances in 2007 is almost the same as the figure in 2010, despite a substantial increase in total claims and a substantial increase in participation by respondents. There were 5,038 acceptances in 2010.
  6. Interestingly, the figure for assessments for those two years is almost the same. (8,208 in 2007 and 8,380 in 2010).
  7. That implies that there are more problematic cases appearing in the Injuries Board case load; or, that the Injuries Board is becoming more discriminating as to the complexities of personal injury claims.
  8. Or, that the medical profession is not keen to run the risks that the Injuries Board system is potentially transferring to it. Errors in assessment (barring a constitutional action yet to come) cannot result in a liability for the Injuries Board, but that is very likely not true of the doctors working for the Injuries Board/respondents. Unlike the Injuries Board, they are not statutorily licenced to make mistakes with impunity.

 

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