cearta.ie – Page 120 – the Irish for rights

EU law has thrown up some very abstruse issues, none more so that the compatibility of national VAT regimes with European VAT Directives. Where there has been a charge to tax pursuant to national rules which infringe EU law, then that overpayment of tax can be recovered.

Sometimes the issue concerns a relatively straightforward overpayment. For example, the Irish Times reported a little while ago that GE Capital Woodchester Ltd has brought legal proceedings against the Revenue claiming it has overpaid some €19 million due to the State’s alleged failure properly to implement an EU directive related to the VAT treatment of hire purchase transactions. The principle of restitution of overpaid taxes is well established at Irish law (see O’Rourke v The Revenue Commissioners [1996] 2 IR 1 (HC, Keane J) and Harris v Quigley [2006] 1 IR 165, [2006] 1 ILRM 401, [2005] IESC 79 (01 December 2005) following Woolwich Building Society v Inland Revenue Commissioners [1993] AC 70 (HL) (pdf); see also In re Article 26 and the Health (Amendment) (No 2) Bill, 2004 [2005] IESC 7 (16 February 2005)) so the main question in the Woodchester proceedings (at least as they appear from the newspaper report) will be whether the overpayment is in fact made out.…

President signs Bills

23 July, 200925 July, 2013

| 6 Comments

| Blasphemy, Defamation, Defamation Bill 2006

From the Irish Times breaking news site:

President McAleese signs controversial Bills into law

President Mary McAleese has this morning signed the Defamation Bill 2006 and the Criminal Justice (Amendment) Bill 2009 into law. …

Updates: from RTÉ news: President signs controversial bills into law; and from the Irish Times: Ahern welcomes Bills’ enactment; see also Belfast Telegraph | BreakingNews.ie | CCJHR blog | IrelandOnline | Irish Election | New Humanist | New York Times | Press Association | Slugger O’Toole | Tribune.ie. Further update: it’s now listed on the official list of Acts signed by President McAleese, as the Defamation Act, 2009 (No 31 of 2009) / An tAcht Um Chlúmhilleadh, 2009 (Uimhir 31 de 2009).

In a press release, the Minister for Justice welcomed both enactments, and he had this to say about the new Defamation Act, 2009:

Modernisation of our Defamation law is now complete on the enactment of the Bill. I believe the legislation in what is a complex area strikes the right balance in the public interest.

For Michael Nugent, the campaign to repeal the new blasphemy law begins now.…

President’s decision tomorrow

22 July, 200923 July, 2009

| 1 Comment

| Blasphemy, Defamation Bill 2006, Irish Society, Media and Communications

For anyone who is as impatient as I am to find out what President McAleese has decided after her meeting this evening with the Council of State, the RTÉ News website is reporting:

The meeting of the Council of State called by the President ended at around 10pm. … The President has indicated she will announce her decisions tomorrow morning. …

Update (23 July 2009): Irish Independent | Irish Times here and here | Jason Walsh here and here | Slugger O’Toole.

And so we wait. Patiently?

Bonus link: meanwhile, the RTÉ news report has a link to the following story from a few weeks ago: OSCE argues against blasphemy law. The Organization for Security and Co-operation in Europe (OSCE) press release to which that story refers is headed: OSCE media freedom representative welcomes Irish draft law decriminalizing libel, asks to drop ‘blasphemous libel’, and begins (with added links):

The OSCE Representative on Freedom of the Media, Miklos Haraszti, welcomed today the Irish Parliament’s final preparations to decriminalize defamation, but warned that the proposal to introduce a new article on ‘blasphemous libel’ risked jeopardizing OSCE media freedom commitments. …

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Blasphemy provisions clash with Constitution

22 July, 200922 July, 2009

| 2 Comments

| Blasphemy, criminal libel, Defamation Bill 2006

In today’s Irish Times, a piece by yours truly under the above headline:

Blasphemy provisions clash with Constitution

The President has very few unconstrained powers, and the Council of State is convened only rarely, but this evening they will all move centre stage, when the Council convenes to advise the President whether to refer two controversial Bills to the Supreme Court. Whatever she does about the Criminal Justice (Amendment) Bill, 2009, she should certainly refer the blasphemy provisions of the Defamation Bill, 2006 …

Read all about it here (it’s a development of my argument here).

The cases I mention in the piece are:

the case against Gay News magazine (wikipedia) is Whitehouse v Lemon [1979] AC 617 (HL) (wikipedia);

the case against Salman Rushdie for The Satanic Verses is R v Metropolitan Magistrate ex p Choudhury [1991] 1 QB 429;

the case against Jerry Springer – The Opera is R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007);

the relevant decisions of the European Court of Human Rights include Wingrove v UK 17419/90 [1996] ECHR 60 (25 November 1996), and Klein v Slovakia 72208/01 [2006] ECHR 909 (31 October 2006); and

the case against the Sunday Independent for publishing the divorce referendum cartoon is Corway v Independent Newspapers [1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999).

…

Is Lady Chatterley’s Lover obscene?

21 July, 20092 November, 2017

| 8 Comments

| Censorship, criminal libel, Freedom of Expression, Law, Obscenity

No, at least so far as the law is concerned. But after its initial publication in 1928, it was not until the 1960s that litigation in the US and the UK allowed it to become generally available. An op-ed by Fred Kaplan in the today’s New York Times, entitled The Day Obscenity Became Art, (with added links) tells us that

today is the 50th anniversary of the court ruling that overturned America’s obscenity laws, setting off an explosion of free speech — … The historic case began on May 15, 1959, when Barney Rosset, the publisher of Grove Press, sued the Post Office for confiscating copies of the uncensored version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s Lover,” which had long been banned for its graphic sex scenes.

… Mr. Rosset hired a lawyer named Charles Rembar, … [who] presented “Lady Chatterley” as a novel of ideas that inveighed against sex without love, the mechanization of industrial life and morbid hypocrisy. … On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover” through the mail.

…

Impossible research

19 July, 200921 July, 2009

| 2 Comments

| General

An acerbic view of academic research, via the ever-wonderful Piled Higher and Deeper:

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Tory Island and Unjust Enrichment – continued

18 July, 200928 November, 2012

| 11 Comments

| Restitution, Tory Island

I wrote in April about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. At that stage, Mr Justice Murphy suggested that there may be a restitution claim for the hotel’s use of the site as a car park, and adjourned the case to receive submissions as to remedy. He gave judgment yesterday (Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ news). Murphy J held that an equitable remedy lay not in the re-instatement of the original property but in the provision of a comparable dwelling on this island or its market value, and he adjourned to October the issue of which of those options should be chosen. And so we must wait some more to learn whether the remedy really is restitutionary or whether it is founded upon more general considerations.…

Another twist in the tale of the Defamation Bill

17 July, 200925 July, 2013

| 13 Comments

| Blasphemy, criminal libel, Defamation, Defamation Bill 2006, Freedom of Expression, Human Rights, judges

The saga of the Defamation Bill, 2006 is not over yet. Article 26 of Bunreacht na hÉireann (the Irish Constitution) allows the President, after consultation with Council of State, to refer a Bill to the Supreme Court for a determination of its constitutionality. President McAleese has chosen to convene the Council of State to advise her on the qustion of whether to refer not only the (controversial) Criminal Justice (Amendment) Bill, 2009 (an unsurprising move) but also the (equally controversial) blasphemy elements of the Defamation Bill, 2006 (which has come as a great surprise). (See Belfast Telegraph | BreakingNews.ie | Bock the Robber | ICCL | Irish Emigrant | Irish Independent | RTÉ news | Irish Times | PA | Slugger O’Toole. Update (18 July 2009): see also Irish Examiner | Irish Times here and here | Irish Independent | MediaWatchWatch).

There have been 15 such references to date. If the Court holds that a Bill is unconstitutional, the President must decline to sign it; whilst if the Court decides a Bill is constitutional, the President must sign it into law, and the resulting Act is immune from constitutional challenge in the future.…