Sunday, February 12, 2012

#SOPAIreland: where's the legal advice?

The main reason - effectively the only reason - given by Minister Sean Sherlock for pushing ahead with a deeply flawed statutory instrument is that he is acting on the advice of the Attorney General. However, he has not revealed the detail of that advice and we are being asked to take it on trust both that it is correct (a matter which is open to debate) and also that it compels this particular course of action.

Fortunately, I discovered during the week that the Labour Party has an explicit commitment as to what should be done in these circumstances. Here's an excerpt from their 2011 policy document "New Government, Better Government":
Attorney General’s Advice

50. In specific circumstances the Attorney General’s advice to government should be published. If the advice of the Attorney General is publicly relied upon as justifying or necessitating a particular course of action adopted by the Government or by a minister, privilege should not preclude the publication of a summary of the arguments as they relate to:
* the development of a legislative proposal by the government, a minister of the government or a minister of state, or by any other member of the Dáil or Seanad,
* the introduction of a Bill or resolution in either House of the Oireachtas or the passage, defeat or amendment of a Bill or resolution in either House,
* the making, revocation or amendment of a statutory instrument, or
* the development or amendment of a policy or programme of a public body, unless the advice is given in the course of litigation or in relation to pending or contemplated litigation.*
* Appropriate provision would be taken for the protection of commercially sensitive information and information to do with private individuals, national security, the detection and prosecution of crime, and so on.
I couldn't agree more, and look forward to this Labour policy being applied to the current statutory instrument.

* A question might be raised as to whether publishing advice might prejudice the pending music industry litigation. It could be argued that advice about Ireland's obligations under the Infosoc Directive should not be released, though the Minister has already rather let the cat out of the bag by stating to the Dáil that the advice is that "the State is at risk of actions against it, which would probably result in substantial damages". However, even granting this point there is no reason not to publish the advice about the distinct issue of how to implement the Directive. For example, why was a SI considered appropriate and not primary legislation? How was the vague wording chosen? Why did the Minister reject the suggestions in the Technical Group's alternative draft SI? There is no possible prejudice in providing more clarity on these points.

1 comment:

  1. Will Labour start publishing advice from the AG before or after they put in place their policy not to push through important legislative changes via SI?