Law - Journal Articles

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A critique of the cohabitation provisions of the Civil Partnership Bill 2009
(Sweet & Maxwell/Round Hall, 2009) Mee, John
Analyses the scheme relating to cohabitation outside marriage or civil partnership provided for in the Civil Partnership Bill 2009 Pt 15. Summarises, and identifies problems relating to, some of the provisions in Pt15, including the definitions of cohabitant and qualified cohabitant in s.170, the requirement of financial dependency underpinning the entitlement to financial redress for qualified cohabitants under ss.171, 172, 173 and 185, and the enforceability of cohabitant agreements. Notes conflict between the entitlement to financial provision and the principle of a clean break between the parties. Legislation Cited: Civil Partnership Bill 2009 s.170, s.171, s.172, s.173, s.185, s.199 (Ireland)
A different kind of death? Barts NHS Trust v Dance and Battersbee
(SAGE Publishing, 2023-04-19) Lyons , Barry; Donnelly, Mary
The case of Archie Battersbee, a 12-year-old boy who suffered a catastrophic hypoxic brain injury, was the subject of several Family Division and Appeal Court hearings between April and August 2022. During the protracted legal process, appeals were made by the family to the Supreme Court, the European Court of Human Rights, and the United Nations’ Committee on the Rights of Persons with Disabilities (CRPD Committee). These were unsuccessful in achieving a stay on the withdrawal of life-sustaining interventions, whose continuance the Family Division of the High Court had found not to be in Archie’s best interests. This commentary focuses on two novel aspects of the proceedings: the Court of Appeal’s overturning of Arbuthnot J’s conclusion that Archie was brainstem dead, and the CRPD Committee’s intervention in response to the family’s appeal.
A minimal approach to adverse possession
(Sweet & Maxwell, 2015-09) Mee, John
Comments, from an English law perspective, on the Irish High Court judgment in Dooley v Flaherty on whether the defendant's period of adverse possession of a dilapidated property, that commenced on the termination of an oral periodic tenancy, had been interrupted by the paper owner's acts in: (1) accessing the roof via a neighbour's attic to effect a repair; (2) arranging for an employee to repair some roof slates; and (3) insuring the property.
Abortion care in Ireland: Developing legal and ethical frameworks for conscientious provision
(John Wiley & Sons, Inc., 2019-11-02) Donnelly, Mary; Murray, Claire
This article celebrates the remarkable changes which have occurred in the provision of abortion care in Ireland following the vote to remove the restrictive Eighth Amendment to the Constitution of Ireland in May 2018. However, it also identifies ways in which the emerging legal, ethical and clinical landscape is still impeding the conscientious provision of abortion care. It argues that in order to address these impediments, more attention needs to be paid to the ethical context for conscientious provision. This requires political leadership as well as ongoing leadership by professional bodies to develop both the clinical and the ethical guidance for conscientious provision.
The absence of integration and the responsibilisation of Union citizenship
(European Papers, 2018-10) Stephen Coutts
Union citizenship has witnessed a reactive turn in recent years with citizens' rights being more easily restricted. Key to this development is a shift in the use of the concept of integration. This article traces this development through two key areas of law, namely access to social benefits and the effect of criminal behaviour on citizens' rights. It further argues that this shift in the use of integration entails a greater emphasis on the agency of the individual and the responsibilisation of the citizen. An image of the “good EU citizen” emerges as productive and law-abiding.
Addressing marine plastic pollution as a 'wicked' problem of transnational environmental governance
(Lawtext Publishing Limited, 2020-07-21) McIntyre, Owen
Recent scientific research and related media publicity concerning the nature and scale of the problem of marine plastic pollution (‘MPP’) has shone a spotlight on the difficult task of designing and implementing effective legal responses to address this complex environmental challenge. Key among these challenges is that of the ‘fragmentation’ of the diverse environmental law frameworks applying to MPP. The regulatory difficulties associated with the environmental problem of plastic waste and pollution more generally are inextricably linked to the transnational character of globalized supply chains, not alone for plastic products, but for the treatment or disposal of plastic waste and for all internationally traded goods which incorporate or come packaged in plastics of one form or another. In such an uncertain regulatory landscape, beset by legal fragmentation and numerous regulatory lacunae, the rapidly emerging paradigm of global or transnational environmental law (TEL) may offer an innovative means of controlling, informing and guiding the related activities of producers, manufacturers, exporters, importers, distributors, retailers and consumers across global supply chains.
Ambulation, severance, and the common intention constructive trust
(Sweet & Maxwell, 2012-10) Mee, John
Analyses the Supreme Court ruling in Jones v Kernott on whether the presumption that a separated unmarried couple, who had jointly owned their home, held beneficial interest in the property in equal shares could be displaced by evidence of their changed intention, so it was possible to find that they were now beneficial tenants in common in the proportions of nine to one under a common intention constructive trust. Argues that this reasoning is founded on the "ambulatory" potential of this trust, a notion derived from the House of Lords judgment in Stack v Dowden.
An easement by estoppel?
(Sweet & Maxwell, 2013-02) Mee, John
Discusses the Court of Appeal judgment in Joyce v Epsom and Ewell BC on whether the successor in title to a homeowner who, as a condition of him withdrawing his objection to the construction of supermarket, had been allowed a right of way over a driveway to a service road behind his property, could establish the existence of an easement by way of proprietary estoppel. Considers the relevance of the local authority's awareness that it had induced the owner into believing he enjoyed a right of access. Assesses whether the authority's denial of the claimant's entitlement was unconscionable.
Application of the paternalism principle to constitutional rights: Mental health case-law in Ireland
(Brill Academic Publishers, 2021-06-11) Whelan, Darius
In adjudicating on matters relating to fundamental constitutional or human rights, courts make important statements about the principles which apply. The principles articulated will have a profound impact on the outcomes of such cases, and on the development of case-law in the relevant field. In the fields of medical law and mental health law, various courts have moved away from deference to medical decision-making and paternalism to a person-centred rights-based approach. However, courts in Ireland have continued to interpret mental health law in a paternalistic fashion, praising paternalism as if it is particularly suitable for mental health law. This raises profound questions about judicial attitudes to people with mental health conditions and judicial reluctance to confer full personhood on people with disabilities. This article outlines case-law in Ireland regarding paternalism in mental health law and discusses the consequences for constitutional rights in Ireland.
The appropriate assessment process and the concept of ecological 'integrity' in EU nature conservation law
(Lawtext Publishing, 2013-12) McIntyre, Owen
Arctic governance: An analysis of a treaty-based cooperation hypothesis
(Asociación Española de Profesores de Derecho Internacional y relaciones Internacionales (AEPDIRI), 2024-02-08) Kavanagh, Elena
This commentary focuses on the method for enhancing cooperation in the Arctic region amidst the challenges posed by global climate change, declining collaboration with Russia, and the growing influence of non-Arctic states such as China. Arctic cooperation can potentially be strengthened by further developing the hypothesis by Timo Koivurova and Akiho Shibata: “Arctic cooperation based on treaties [is] more resilient than that on soft law.” Treaty-based cooperation has the potential to foster productive intergovernmental dialogue and ensure procedural justice for all stakeholders, even in the event of conflict escalation within and beyond the Arctic region. Negotiation and adoption of new treaties in the Arctic appears decidedly remote in the short-term future, given geopolitical tensions and mistrust among Arctic states. Nonetheless, the prioritization of treaty-based cooperation should be considered for the future models of Arctic Governance.
Assessing children’s capacity: Reconceptualising our understanding through the UN Convention on the Rights of the Child
(Brill Academic Publishers, 2020-08-24) Daly, Aoife; Independent Social Research Foundation
This article seeks to reconceptualise approaches to assessing children’s capacity, particularly in light of Article 5 of the crc, which enshrines the principle of the evolving capacities of the child. Professionals regularly assess children’s capacity, for example when doctors treat children, or when lawyers represent child clients. They usually do this assessment intuitively however, as there is little guidance on how assessment should work in practice. Medical law in England and Wales serves as a case study to examine law and practice as well as challenges in the area. It is concluded that it may not necessarily be possible objectively to measure children’s capacity, and it may need to be done intuitively. Yet it should be done via a process which is rights-based. An approach to children’s capacity is proposed through four concepts based on the UN Convention on the Rights of the Child: Autonomy, Evidence, Support and Protection.
The Assisted Decision-Making (Capacity) Act 2015 in the courts: Hearing the voice of the relevant person
(Irish Judicial Studies Journal, 2024) Donnelly, Mary; Gleeson, Caoimhe
The Assisted Decision-Making (Capacity) Act 2015 (hereafter the 2015 Act) constitutes a decisive shift in legal responses to people whose capacity is in question, requiring greater support for decision-making, an amplification of the relevant person’s voice, and increased respect for their will and preferences even if they are found to lack decision-making capacity. Although much of the operation of the 2015 Act happens outside of the courts, judicial proceedings also play a central role. This article is concerned with the role of the relevant person’s voice in such proceedings. It identifies efforts being made by judges to ensure that the relevant person’s voice is heard but also recognises some of the challenges that can arise in delivering on this. It identifies the need for further resourcing to support the voice requirements in the Act, including better access to independent advocacy, and for enhanced guidance for courts and legal practitioners.
Best interests in the Mental Capacity Act: time to say goodbye?
(Oxford University Press, 2016-12-22) Donnelly, Mary
Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, as interpreted by the Committee on the Rights of Persons with Disabilities in General Comment No. 1, offers a vision for law’s response to capacity impairments which differs in crucial ways from that contained in the Mental Capacity Act 2005. The Committee rejects the functional test for capacity and requires that a ‘will and preferences’ paradigm must replace the ‘best interests’ paradigm and that all substitute decision-making regimes must be abolished. This article draws on the position adopted in General Comment No. 1 in evaluating the best interests standard in the Mental Capacity Act. It sets out the normative case for a stronger legislative endorsement of will and preferences and the inclusion of greater support mechanisms but rejects the contention that all substitute decision-making can, or should, be abolished. It also argues that the best interests standard in the Mental Capacity Act retains some revolutionary potential and that, pending legislative reform, this can be further developed through the courts.
Book Review of Mental Health Homicide and Society: Understanding Health Care Governance by D.P. Horton
(Wiley, 2021-12-10) Whelan, Darius
Brexit on the island of Ireland: beyond unique circumstances
(School of Law, Queen's University Belfast, 2018-09-09) Schiek, Dagmar; European Commission
This article offers an original analysis of Ireland’s and the UK’s common EU membership in the light of Brexit, identifies socio-economic decline and threats to the functionality of the Good Friday Agreement as decisive threats emanating from Brexit, and suggests that these can be counteracted by providing a sustainable legal framework for hybridity of Northern Ireland in the categories of citizenship and territory, as well as for deepening socio-economic and civic integration on the island of Ireland, alongside securing antidiscrimination law in Northern Ireland. Instead of protecting these elements, the Draft Protocol on Ireland/Northern Ireland to the EU–UK Draft Withdrawal Agreement sacrifices the indivisibility of the Internal Market by limiting Northern Ireland’s access to markets in goods. Concise changes to the draft are proposed to address these shortcomings and to secure participation of Northern Ireland’s representatives in its implementation.
Can legal frameworks for disaster response be improved?
(University College Cork, 2011-10) Cubie, Dug
We are all familiar with images of search and rescue teams, medics, and engineers arriving to help after a disaster, such as following the March 2011 Japanese earthquake and tsunami or the massive floods in Pakistan in July 2010. In recognition of the devastating impact natural or human-made disasters can have on individuals and communities, an estimated US $7billion was spent globally in 2008 on emergency assistance including food, shelter and medical care. The mere words “Pompeii”, “Krakatoa” or “Chernobyl” conjure up scenes of death and destruction. So how can lawyers assist in disaster responses? Can legal frameworks for disaster response be improved? Cynics may say that things always get more complicated when lawyers become involved. Rules, regulations and red tape — surely all of these legal tools only delay vital life saving assistance? Yet legal practitioners at a national and international level are increasingly aware that we have a lot to contribute to ensure that humanitarian assistance is delivered efficiently and effectively to people severely affected by natural or human-made disasters. My research examines the evolving international legal mechanisms to facilitate the delivery of humanitarian assistance following disasters. Drawing on international humanitarian, refugee and human rights law, there is increasing discussion of a “right to humanitarian assistance”. Yet rights that are not enforceable are at best aspirational, so my research will determine whether such a right actually exists and what it might mean in practice.
Censorship in the EU as a result of the war in Ukraine. Case T-125/22 RT France v Council
(Sweet and Maxwell, 2023) Lonardo, Luigi
The judgment in RT France v Council of the European Union confirmed the validity of a ban on broadcasting of any content by certain Russian-sponsored media companies in the EU territory, because it considered that the Russian Federation engaged in continuous and concerted propaganda against the EU and its Member States. The ban is a highly unusual measure in the context of EU restrictive measures. It was challenged by RT France, a media company based in France but predominantly funded by the Russian Federation. The case raises complex and novel legal questions within the EU legal framework. This analysis is dedicated to three of them. The first issue concerns EU competence and the legal basis for the ban: can the EU lawfully adopt censorship, inside the EU’s territory, through a Common Foreign and Security Policy measure? The second issue involves freedom of expression: can RT France rely on this right in the first place, and does propaganda fall under the umbrella covered by freedom of speech? The third issue centres on the weight of the context (a war in the EU’s neighbourhood) as a justification for the measure. In this respect, this analysis argues that the General Court convincingly explained why the measure strikes a right balance between the protection of free of speech on the one hand, and the protection of the EU’s public order, of public security, and of other EU values on the other hand.
Challenging EU sanctions against Russia: The role of the court, judicial protection, and common foreign and security policy
(Cambridge University Press, 2023-12-20) Lonardo, Luigi
This Article deals with selected issues of judicial protection that arise in the context of the sanctions adopted by the EU against Russia and Belarus after the 2022 invasion of Ukraine. As most cases challenging the sanctions are pending, this Article draws lessons from the previous case law on EU restrictive measures. It explores what aspects of the sanctions escape judicial review, then profiles of external (or formal) legality of the sanctions, of internal (or substantive) legality, and concludes by assessing the overall role of the Court in EU foreign affairs. The discussion shows that the case law in this area of EU administrative law converges to a great extent with other areas of EU competence, but tensions remain in how the Court may impose substantial constraints to executive discretion in the field of Common Foreign and Security Policy.
The changing face of Capacity legislation in Ireland: algorithms for clinicians
(Cambridge University Press, 2020-03-12) Murphy, Valerie E.; Gulati, Gautam; Whelan, Darius; Dunne, Colum P.; Kelly, Brendan D.
Capacity legislation in Ireland is evolving. The Assisted Decision-Making (Capacity) Act 2015 has been passed into law, but its main provisions are yet to be commenced. This paper compares the law and its practical implications currently and under the new legislation. Quick reference algorithms for frontline clinicians are proposed.

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