Author: Eoin

Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.

Is Article 50 a one-way street; can a withdrawing State stop on it, or reverse out of it?

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| ECJ

One Way Street via WikipediaIn an earlier post, I argued that there may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU. It has been a small drop in the online torrent of serious analysis of the legal and political consequences of last week’s referendum. My must-reads include Mark Elliott, the UK Constitutional Law Association’s blog, the LSE’s BrexitVote blog, the Brexit Reflections on the blog of the Centre on Constitutional Change in the University of Edinburgh, and the Brexit and Article 50 streams on the always excellent Conversation. It was there that I read a great piece by Phil Syrpis entitled Once the UK triggers Article 50 to start Brexit, can it turn back?. He asks whether the UK can have second thoughts stop the Article 50 process, and he comments

It seems staggering that there is no clear answer to this key legal question.

I could not agree more. Nevertheless, even if there is no clear answer, a consensus does seem to be emerging. In my last post, I said that the House of Lords’ European Committee Paper on The process of withdrawing from the European Union (11th Report of Session 2015–16; HL Paper 138; html | pdf) is an excellent guide to the legal mechanics of the UK’s withdrawal from the EU.…

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The limits of judicial deference to academic judgment

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| Academic judgment, Litigation, Universities, US Supreme Court

In my first post yesterday, I took certain comments of Kennedy J in the recent US Supreme Court decision in Fisher v University of Texas __ US __ (23 June 2016) as the context for an analysis of the nature of judicial deference to academic judgment. In this post, I want to look at the limits to such deference. Once those limits have been reached, substantive claims are entertained, even if they often fail (see M Davies “Challenges to ‘academic immunity’ – the beginning of a new era?” (2004) 16 Education & the Law 75).

This is true at both public and private law; and, whilst the public law analysis has dominated the cases (S Hedley “Students as Litigants: A Public Law or a Private Law Issue?” (2015) 14 Hibernian Law Journal 1 [hereafter: Hedley]), the line between these two procedures isn’t always clear. On the one hand, in Green v Master and Fellows of St Peter’s College Cambridge (The Times, 10 February 1896; cited in Hedley, 1; jpg) Wills J held that it was “obvious that the relation between an undergraduate and his college was not a contractual one”. Hence, in Jaffer v York University 2010 ONCA 654 (7 October 2010) [26], [28] (blogged here | here) Karakatsanis JA held that judicial review is the proper procedure when seeking to reverse an internal academic decision (approving Gauthier v Saint-Germain 2010 ONCA 309 (CanLII) (3 May 2010) [46] (Rouleau jca).…

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There may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU

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| ECJ

Brexit, via PixabyI still can’t believe the news about Brexit, and I suspect the same is true of many on both sides of the issue. Since then, there has been much talk about Article 50, and much speculation about the possibility of a second referendum to undo the first. In this brief post, I want to put those two issues together. First, Article 50 is an article of the Treaty on European Union inserted by the Treaty of Lisbon. It is the mechanism by which a Member State may leave the EU. It provides in full as follows (with added links):

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
…

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The nature of judicial deference to academic judgment

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| Academic judgment, Litigation, Universities, US Supreme Court

The US Supreme Court, though depleted at present to eight Justices after the death of Antonin Scalia, can still muster majorities in controversial cases.

One of the most controversial issues regularly before the Court (up there with abortion and guns) is affirmative action, especially in college admissions. At the end of last week, in Fisher v University of Texas __ US __ (23 June 2016) the Court held that a race-conscious admissions program in use at the time of petitioner’s application was lawful under the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. In the course of his judgment for the majority, Kennedy J stressed that, in the case of “an academic judgment … some, but not complete, judicial deference is proper”.

In this post and the next, I want to leave aside the (relatively narrow, but – in my view – sensible and precise) holding on the affirmative action issues, and focus instead on the issue judicial deference to academic judgment. In this post, I will consider the nature of such deference. In the next post, I will consider its limits.

In Fisher, Kennedy J held that, once “a university gives ‘a reasoned, principled explanation’ for its decision, deference must be given ‘to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals’,” (citing an earlier stage in the Fisher litigation: Fisher v University of Texas at Austin 570 US __ (24 June 2013); the earlier decision was referred to in the sequel as Fisher I, and the sequel under consideration here is being referred to as Fisher II).…

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Overpayments by ATMs and theft from banks

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| Mistaken payments, Restitution

Money from an ATM, via flickrIn June 2012, a massive IT failure affected all of Ulster Bank’s ATMs, and many customers sought to take advantage by making multiple withdrawals of cash which they did not have in their accounts. As I have commented many times on this blog, in the case of overactive ATMs, overpayments, and theft, a bank error in your favour is not a gift from God; an overactive ATM is not santa, and the scrooge bank will have to be repaid; bank errors are not a licence to gamble; and keeping the proceeds of a bank error in your favour can amount to theft.

However, in a recent prosecution of a man who managed to withdraw €13,600 from Ulster Bank ATMs during the IT failure, the judge dismissed the case as the prosecution failed to prove Ulster Bank did not consent to the withdrawals, and the State had failed to prove the bank existed. The defendant was charged with 23 counts of stealing cash, the property of “Ulster Bank Ireland Ltd”, and whilst there was evidence of various entities associated with Ulster Bank, the judge held that there was no documentary proof of a properly incorporated legal entity called “Ulster Bank Ireland Ltd” put before the jury, and he therefore directed the jury to acquit the defendant.…

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Some Courts legislation mentioned in the Government’s new legislative programme

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| Judicial Appointments

As I have pointed out in two previous post (here & here), the Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers. This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. The Department of Justice will be especially busy – by my count, it has a mammoth 41 of the 97 Bills. Three, in particular, relate to the Courts:

Judicial Appointments Bill
To replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission
Heads expected by end year 2016

Judicial Council Bill
To promote excellence in the exercise by judges of their judicial functions and to provide effective remedies for complaints
about judicial misconduct including lay participation in the investigation of complaints
Heads approved, drafting at an advanced stage

Juries Bill
To reform the law relating to juries
Proposals under consideration

There doesn’t seem to be a Brief for the Minister on the Department’s website, as there was for the incoming Ministers for Jobs, Enterprise and Innovation (which I discussed here; follow-up here), and Education and Skills (which I discussed here; follow-up here).…

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Some third level legislation mentioned in the Government’s new legislative programme

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| Universities

Wishing HandLast week, under the title Some third level legislation envisaged in the Brief to the incoming Minister for Education, I wrote about the legislative priorities of the Department of Education and Skills, as set out in the Brief (pdf) to that department’s incoming Minister. This post is by way of a short update. As I pointed out in yesterday’s post, the Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers (including the Technological Universities Bill, as discussed by Steve Hedley on Ninth Level Ireland). This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. Two of them relate to matters covered in my post on proposed third level legislation. First, a Higher Education (Reform) Bill is proposed, to modernise the legislative framework underpinning the governance and functions of the Higher Education Authority [HEA] and the governance structures of the universities (see p11).…

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Copyright reform comes a little closer still

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| Copyright, CRC12 / CRC13

Harp and copyrightLast week, under the title Copyright reform comes a little closer in Ireland, I wrote about the copyright priorities of the Department of Jobs, Enterprise and Innovation, as set out in the Brief (pdf) to that department’s incoming Minister. This post is by way of a short update. The Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers. This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. One of them is a proposed Copyright and Related Rights (and Miscellaneous Intellectual Property Matters) (Amendment) Bill (see p15). The aim of the Bill is to implement certain recommendations of the Copyright Review Committee to modernise Irish copyright law, with some other ancillary necessary legislative changes to copyright. And Heads of the Bill are “expected in June 2016”. We’ll see whether the Heads are published before the end of the month.…

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