Law - Doctoral Theses

Permanent URI for this collection


Recent Submissions

Now showing 1 - 5 of 51
  • Item
    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.
  • Item
    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.
  • Item
    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.
  • Item
    Involuntary admission of young people to approved centres in Ireland: finding the voice of the young person a rights-based perspective
    (University College Cork, 2022) Ralston, Joanna; Donnelly, Mary; Murray, Claire
    This thesis applies a children’s rights-based perspective to the involuntary admission of young people to an approved centre in Ireland. Children’s rights are an important evolving component of human rights-based law. This thesis is concerned with the voice of the young person, aged 16-18 years, in the involuntary admission process and the evaluation of proposals for reform. Given the prevalence of young people with mental health difficulties in Ireland and our domestic and legal obligations to ensure that their voices are heard in all matters that affect them, it is timely to consider the extent to which this is achieved in the mental health context and to consider proposals for reform. As part of this evaluation this thesis answers three research questions. First, what is the legal basis for the recognition of the voice of the young person in respect of their mental health? Secondly, how is the voice of the young person currently heard in Irish mental health law and policy? And thirdly, how effective are the proposed reforms of the mental health legal framework and the District Court? The purpose of this engagement with a children’s rights-based approach is to evaluate the basis for the recognition of the voice of the young person. In the early chapters of this thesis this evaluation is based on the international standards of the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. This evaluation is also considered at a European level pursuant to the European Convention on Human Rights. This evaluation is completed at a domestic level by considering how the voice of the young person is protected under the Irish Constitution. This thesis looks beyond the law to fully appreciate what happens in practice during the involuntary admission process. To this end the research is enhanced by the inclusion of an empirical study consisting of interviews with a range of professionals involved in the involuntary admission of young people and court observation. However, the thesis also acknowledges the tensions and the disconnect between the findings of the empirical study and other direct evidence from studies concerning young people. Suggestions are made in the final chapters of this thesis regarding how the proposed reforms of the Mental Health Act, 2001 might be further amended to ensure that young people with mental health difficulties are provided with an opportunity to have a meaningful say concerning their mental health.
  • Item
    Regional cooperation for the establishment and management of transboundary marine protected areas: a reflection on normative shifts in international environmental law
    (University College Cork, 2022) Enright, Sarah Ryan; McIntyre, Owen; O'Hagan, Anne Marie; Havforskningsinstituttet; Irish Marine Institute; Science Foundation Ireland
    The purpose of this thesis is to examine the extent of the legal obligations of States under international law to conserve marine biodiversity via the establishment of transboundary marine protected areas (MPAs) across international jurisdictions. The main argument presented will demonstrate that while the science underpinning conservation of marine biodiversity and ecological connectivity has evolved to recommend transboundary networks of MPAs, the relevant international legal framework has not evolved in parallel to support their designation and implementation, resulting in limited and ad hoc approaches globally, ranging from traditional legally binding multilateral options under the United Nations Regional Seas Programme to non-legally binding voluntary agreements. In particular, this thesis sets out to examine to what extent international environmental law and the law of the sea facilitate and support cooperation between States in creating transboundary MPAs, in particular at the regional level.