Law - Doctoral Theses

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The use of science in EU environmental decision-making: a measure of legitimacy in environmental regulation
(University College Cork, 2024) Jennings, Rhoda; McIntyre, Owen; Poustie, Mark; Environmental Protection Agency; Irish Research Council
This thesis investigates the role of science and scientific evidence in EU environmental law. It examines the practical interaction and relationship between science and the formulation and application of environmental law. In so doing, it takes a legal regulatory approach to exploring the science-law interface. The research goes beyond viewing science as a component of evidence-informed policy. It explores whether, and to what extent there is a legal obligation to use scientific evidence in the formulation of EU environmental policy and legislation. This is carried out through an examination of the role attributed to science under the Treaty on the Functioning of the European Union, and by exploring the normative role of science as a source of legitimacy in environmental decision-making. The thesis adopts a practical approach to investigating the role of science in environmental law. It develops a a typology of the primary EU science advisory bodies that assist the Commission in its work, and feed into pre-legislative debate. It carries out case studies on ambient air pollution and nature conservation legislation, tracing the use of science in the formulation and application of the law, from the travaux préparatoires to the adoption of the final legislation, and the interpretation of the law by the Court of Justice of the European Union. The research consolidates the exploration of the normative role of science in EU environmental legislation and policymaking, with the actual role of science, by drawing on the concept of legitimacy to develop an analytical framework. This framework is used to discuss more precisely how science is used in the formulation of legislation, and the consequences for the legitimacy of the legislation. The research indicates that there is a wealth of high-quality science advice in the EU. Shortcomings in the regulatory structure of the science-law interface, however, serve to undermine the functional benefits of science. The thesis proposes preliminary methods for enhancing the use of science in EU environmental decision-making.
Reconciling the objectives of environmental protection and climate mitigation in EU law: the problem of renewable energy project authorisation
(University College Cork, 2023) Hardiman, Alison; McIntyre, Owen; Poustie, Mark; EirGrid
This thesis investigates the contrasting approaches to project authorisation for renewable energy (RE) infrastructure projects in EU environmental and RE laws. It identifies the need for integration and proportionate application of environmental laws as it is sought to deliver the EU’s energy transition. Particular attention is afforded to the environmental law framework, where the objective of climate mitigation as a means of environmental protection as defined within the TFEU has not been effectively incorporated at Directive level. The thesis challenges the fact that EU environmental law has not been amended to reflect EU RE law and policy, and illustrates the problems that have therefore ensued at project level. It analyses the specific elements of the EIA and Habitats Directives, in particular, that do not facilitate or enable the infrastructural development that must necessarily underpin the energy transition. Detailed consideration is afforded to the relevance of the applicable EU principles of environmental integration, proportionality and legal certainty in this regard. It is illustrated within this research that environmental law is required to integrate the full breadth of environmental objectives, including climate mitigation, within the framework of sustainable development. Application of the principle of proportionality is considered as a means of informing appropriate balancing of different objectives within the scope of environmental protection, mindful of the need for legal certainty in order to enable investment by prospective developers. Within this context, the research addresses the tensions and necessary trade-offs arising between contrasting environmental protection objectives as it is sought to develop extensive RE infrastructure. In so doing, a more structured and therefore transparent approach to decision making by competent authorities is proposed. Areas of norm conflict, in respect of which a reframing of EU environmental law is required, are also identified. The aim of this research is to provide a clear focus on this issue within environmental law and to address the finding within EU RE law that the greatest barriers to the development of RE infrastructure are the regulatory processes designed to achieve environmental protection. Once so identified, appropriate and effective means of application of EU legal principles are identified that can contribute to policy integration within this sector. This is designed to mitigate the impending delivery gap regarding RE infrastructure successfully deployed, in accordance with the EU’s ambitious and urgent RE targets.
Reforming mental condition defences and procedures in the criminal justice system in light of the Convention on the Rights of Persons with Disabilities
(University College Cork, 2023) Noonan, Michael Luke; O'Sullivan, Catherine; Whelan, Darius; Irish Research Council
The United Nations Convention on the Rights of Persons with Disabilities (C.R.P.D.) is the first human rights treaty of this century. It aims to ensure that persons with disabilities have full and effective inclusion in society and are not the subjects of discrimination. Support for the C.R.P.D. was unprecedented, attracting widespread approval from states in all regions, and achieving the highest number of signatories to a U.N. Convention on its opening day. Whilst most of its provisions have been welcomed, the interpretation of several key articles by U.N. bodies has led to some unanticipated issues of compliance with areas of the criminal justice system. It has been argued that the C.R.P.D. requires the abolition of any criminal defence which relieves or mitigates liability because of a disability, and any procedures that declare an accused unfit to be tried based on mental impairment. The relevant mental condition defences for this study provide a defence based on a mental condition caused by an internal factor (insanity, diminished responsibility, and infanticide). No State Party to the C.R.P.D. has shown any inclination to abolish mental condition defences or procedures due to a perception that the interpretations advanced by the U.N. bodies are flawed and unworkable. The summary documents of the drafting process of the treaty show that the potential impact of the C.R.P.D. on criminal justice issues received almost no consideration during negotiations. This means that there has been very little consideration of how criminal law could be reformed in a way that is compliant with the C.R.P.D. As Ireland plans to ratify the Optional Protocol, which permits individuals to complain to the Committee about a C.R.P.D. violation, it is important to conduct a review of domestic law to identify what changes are required. This study establishes that mental condition defences and procedures can be reformed in a way that is C.R.P.D. compliant without the necessity of abolition. To identify whether the existing law requires reform, a normative framework is constructed from principles derived from the C.R.P.D. and used throughout the thesis to improve compliance. The normative framework’s key principle is the prohibition of the deprivation of legal capacity based on a defect in mental capacity. It also provides that determinations of criminal liability which fail to treat persons with disabilities as equals to others are discriminatory and must be abolished. It is determined that the insanity defence could be made compliant with the C.R.P.D. by the creation of several new mental condition defences. It is proposed that the cognitive limb of insanity should be replaced by a legal rule which allows for evidence of a psychosocial disability to negate mens rea. The evaluative and volitional limbs should be replaced with a new defence which focuses on the defendant’s ability to generate alternative choices. The third new defence is for crimes without a subjective mens rea. These offences pose a particular challenge as they do not require moral fault. It is identified that, in exceptional circumstances, other human rights need to take priority and defendants who are incapable of receiving notice about the law because of a psychosocial disability should not be found liable. It is also found that the partial defences of diminished responsibility and infanticide infringe an offender’s right to legal capacity by holding them to a lesser standard of behaviour because of a disability. It is recommended that both defences should be abolished and replaced by discretionary sentencing for murder. Fitness to be tried hearings should be replaced with an assessment of what support is necessary for the accused to participate effectively in the trial.
Theorising Irish company law: locating Irish company law within entity theory
(University College Cork, 2023) Boland, Michael James; Lynch Fannon, Irene; Irish Research Council for Science, Engineering and Technology
In terms of the contribution that this thesis will make to knowledge in the field, it will add three things. First, it will demonstrate the weaknesses in the contractarian and communitarian debate. Second, it will present entity theory as a framework for studying Irish company law and indeed other company law regimes that are built on the doctrines of limited liability and corporate personality. Third, it will show that Irish company law and most corporate law frameworks enable and support managerial discretion which this thesis refers to as the second pillar of entity theory. These findings converge on the conclusion that the core of decision-making in the company is made by management not by or even for shareholders. This is an important insight given that at the heart of the contractarian and communitarian debate is an assumption that the shareholders wield absolute authority and influence over corporate decision-making. It is true that shareholders in general meetings make important and consequential decisions about the governance, finance, activities and future of the company. Hence, the general meeting has aptly been described as the company's "supreme governing body". But the kinds of corporate decisions and actions that have tended to create tension in this debate are operational decisions such as plant closures, redundancies, outsourcing, tax avoidance, workforce welfare, investments, divestments, and others which are the preserve of management. This then leads to the conclusion that it is directorial or managerial primacy rather than shareholder primacy that is the guiding principle of company law. Contractarians and communitarians assume that the latter, shareholder primacy, is the goal around which company law pivots. But, in fact, shareholder primacy has no basis in company law. For instance, agency theory and the nexus of contracts paradigm which provide conceptual scaffolding for shareholder primacy are not products of law but rather of economics. The way in which agency theory and the nexus of contracts paradigm have been used by the contractarian and communitarian schools creates the impression that the 'company' is merely a collective noun denoting all the natural persons who form it, work in it, and do business with it. The effect of this is to overlook the nineteenth century company law doctrine of corporate personality that provides that the company has a legal identity independent of those who formed it. This is referred to in this thesis as the first pillar of entity theory. The theoretical scaffolds on which the shareholder primacy debate has been waged over decades has led to this company law debate disregarding the fundamentals of company law and has, ironically, brought us back to a time when shareholders, as we understand that term today, did not exist as incorporation was still largely State controlled and limited liability was only in the research and development stage. Directorial or managerial primacy, on the other hand, is embedded in Irish company law and in the company law frameworks of other jurisdictions. As stated, this is a product of the separate legal personality of companies and is thus referred to as the second pillar of entity theory. The company as a legal person is run by a body of natural persons, the Board of Directors, who make day-to-day decisions on behalf of the company. The law reserves certain categories of decision-making to shareholders as mentioned above but only mandates that shareholders meet every fifteen months. In fact, the law permits companies to dispense with the requirement to hold general meetings provided that the shareholders sign a resolution confirming that they approve of the company's financial statements and directors' report and that they agree with any proposed reforms needing their consent. Moreover, company law statutes in Ireland, the UK, and across the US explicitly vest the interests of the company in the hands of the directors. In the UK, the directors must "act in the way [they] consider, in good faith, would be most likely to promote the success of the company". In the US State of Minnesota, for example, it is the Board of Directors who has discretion to decide what is in the "best interests of the corporation". Like in its UK equivalent, the Minnesota provision, which is typical of similar provisions across the US, contains a non-exhaustive list of constituencies to which directors can have regard in exercising their discretion ranging from employees to "societal considerations". In the context of Ireland, it is the directors who must "act in good faith in what [they] consider to be the interests of the company". It is the directors who are empowered by statute to manage the business of the company - a power that was granted by the governing documents of the company (the articles of association) under the previous company law regime but is now contained in statute thus further codifying directorial discretion in Irish law. And, quite apart from being shareholders' agents as the contractarian and communitarian schools of thought believe, it is the directors who enjoy "the most unfettered of powers" under the Act to refuse to register a shareholder on the register of members subject to the one condition that they exercise that power in good faith in the interests of the company. In fact, with the exception of Section 224 regarding the consideration of employee interests and Sections 228(1)(h) and 228(3) concerning members' interests, there is no reference to the interests of shareholders in the Act and, most definitely, no requirement to maximise shareholder wealth. Even those statutory provisions - Sections 224, 228(1)(h), and 228(3) - support managerial discretion by giving management discretion to consider the welfare of employees if they believe that to do so will add value to the company and, in the case of a nominee director, to consider the interests of their appointer notwithstanding their duty to the company as a whole where this does not harm any other party's interests in the company. So, far from being restrictive, which is what a narrow shareholder-focused view of Irish company law would suggest, Irish company law is permissive in that it allows directors as "administrators" the discretion to make decisions and to deal with corporate assets on behalf of their principal, the company.
Does the Irish common law of contract currently or potentially possess the tools necessary to achieve PECL’s good faith requirements?
(University College Cork, 2022) Walsh, Raymond; Hedley, Stephen William
There has been considerable interest at the highest levels of the EU in the establishment of a common European law of contract. Groundwork has been laid in furtherance of this objective, although it is unknown when, or even if, a common European law of contract will be achieved. Hope has been expressed that the EU member states will be guided by this groundwork in the development of their national laws of contract. This thesis demonstrates that the Irish law of contract will not be influenced to develop its doctrine of good faith substantially in the direction suggested. The groundwork is varied in source and content and contains no consensus as to the ideal duty of good faith. While it is acknowledged that the use of any of these sources is necessarily arbitrary in these circumstances, the good faith obligation set out in the Principles of European Contract Law can provide valuable guidance. In the Comment to Principles of European Contract Law, Hugh Beale briefly considered whether the common law possessed the tools necessary to achieve the good faith outcomes required by PECL. The analysis demonstrated that the tools available to the English judiciary at the time of the Comment’s publication were inadequate to PECL’s good faith requirements. This work will undertake a similar, but substantially broader, analysis: it will consider not only those tools which are currently available to the Irish judiciary but also those tools which are potentially available. Three questions are asked and answered. The first question is: what tools are potentially available to the Irish judiciary to substantially expand the principle of good faith in the direction required by PECL? The thesis will demonstrate that the reasonable expectations good faith model and an Australian-style doctrine of estoppel are the only tools which are realistically available. The second question is: can these tools, in combination with the tools which are currently available to the Irish judiciary (the so-called ‘piecemeal solutions’), achieve PECL’s good faith objectives? The thesis will demonstrate that these tools would be insufficient to achieve PECL’s requirements. The third question is: why are the tools incapable of achieving PECL’s objectives? The thesis will demonstrate that the answer lies in the common law’s commitment to the individualistic ideal. The thesis demonstrates that nothing short of national or EU legislation will work to introduce a duty of good faith of PECL’s scope into Irish law, as Ireland’s common law system is ideologically resistant to such a development.

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