Law - Doctoral Theses
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Item Rethinking strategies for regulation of cross-border online gambling in the EU: an examination of legal and policy frameworks(University College Cork, 2024) Leahy, Deirdre; White, Fidelma; Irish Research CouncilWhen is an activity a ‘gambling’ activity? This question troubles law, time and again. Gambling is not a static concept, and the internet has fuelled rapid changes in the delivery of gambling services as well as enabling creation of new gambling formats. A volatile gambling environment is nothing new, and despite ingenuity as to format, framework and structure, gambling has always been an activity of change. It tends to be pursued by law, which must find the vernacular and normative means to capture and control new gambling formats. Why should this question concern the EU? When the EU adopted its policy for online gambling in 2012, legislative competence for the gambling sector, both land-based and online, was left to the Member States. In the interim, with development of novel sui generis online gambling and near-gambling formats, new challenges are emerging for gambling law. One of these formats, the loot box, an in-game purchasing structure built on randomised game architecture, blurs traditional boundaries between gambling and games and is proving difficult to regulate. Some Member States have attempted to capture it within existing legal definitions of gambling, and the EU has been called on to act, but there is still a lack of clarity about the role of gambling law in the context of an EU intervention. This triggers many questions: How does gambling law define ‘gambling’? What is gambling law and what are its objectives? What is the ‘fit’ of gambling law with EU law? What are the rationales for conferral of legislative competence for online gambling as between the EU and its Member States? Is there some quality to gambling law that makes it exceptional in this context? What are the legal obstacles to harmonisation? What is the role of the principle of subsidiarity in this debate? These questions are the subject of this thesis, which takes the loot box phenomenon to examine interrelationships between gambling law and EU law. It explores the discipline of gambling law to investigate whether gambling/gaming convergence creates an environment where a conceptualised approach to the principle of subsidiarity in EU law and policy for online gambling can be developed. It undertakes this task by means of a dual enquiry: first it investigates gambling law to unpack its conceptual foundations and normative context, and then it considers these findings against EU legislative competence for the internal market. The objectives of gambling control are weighed against the goals and objectives of the internal market to explore gaps between EU market aims and the public interest rationales that motivate gambling law. This enquiry demonstrates an unmet need to unravel the normative complexity of gambling law as a precursor to EU policy formation affecting the sector. Lessons learned from EU law and policy for tobacco control are explored to understand how the EU can frame its meta-regulatory functions in issues that impact on personal choice, and the nature of the EU’s sectoral regulatory role. Recognising the function of the principle of subsidiarity, this thesis argues that the discipline of gambling law creates a rebuttable presumption in favour of Member State legislative competence for the sector and pleads for normative sensitivity in the debate on gambling/gaming convergence. It concludes that the solution for EU digital policy with impacts on Member State legislative competence for online gambling is to take a structured approach, acknowledging that the challenge is one of diagonal competences. This should accept that the path towards a solution must first respect the polycentric objectives of gambling law, from which the primacy of Member State legislative competence can also be inferred.Item The language rights of Indigenous Peoples within the Russian Federation(University College Cork, 2024) Kavanagh, Elena; Ó Conaill, Seán; Poustie, Mark; University College Cork; Irish Research CouncilThe Russian Federation is one of the world's most multinational and heterogeneous countries. There are 47 officially recognised Indigenous Peoples. The current decrease in Indigenous language speakers in Russia in the last decade threatens Indigenous Peoples' language and cultural identity. This work seeks to assess whether legislation relating to Indigenous Peoples’ language rights in Russia lacks the mechanisms necessary for effective implementation and protection. Furthermore, we will propose solutions to further improve the protection of language rights for Indigenous Peoples in Russia. The thesis will consist of four analytical strands. In the first analytical strand, we examine the development of the international legal system regarding Indigenous Peoples’ rights, originating from the League of Nations. Then, we focus on the main contemporary mechanisms for protecting Indigenous languages and possible future developments with a special emphasis on the United Nations and the Council of Europe systems. In the second strand, we will outline the historical background of Indigenous rights and linguistic diversity in Russia. The historical analytical strand is invaluable for the complete analysis of the Indigenous Peoples’ rights in Russia, as current policy and legislation are largely influenced by Soviet legislation. The third analytical strand is an examination of policies and legislation in Finland that aim to protect Saami Indigenous language rights, with a comparative perspective of existing and potential challenges in Russia. The fourth and main analytical strand seeks to review the contemporary legislative and political situations relating to Indigenous Peoples' language rights in Russia. We examine the status of Indigenous language rights in Russia, identifying the content of State obligations also highlighting the current state of state legislation and implementation of human rights standards within the Russian Federation. The final section of this strand is informed by a comparative analysis of implementation measures taken by Finland in the area of language rights. However, throughout all chapters, we focus on identifying possible legislative suggestions which can effectively improve the level of Indigenous language protection.Item Non-violent education as a children's right - a human-rights based response to child sexual abuse in educational institutions(University College Cork, 2023) Wittmann, Franz M.; O'Mahony, Conor; Kilkelly, Ursula; McAleese, MaryThis thesis looks into an area of the law where international human rights and the canon law of the Catholic Church and Ireland’s internal legal order intersect and partially overlap. Its focus is on children’s rights as they were stipulated in the 1989 UN Convention on the Rights of the Child (CRC) to which Ireland as well as the Holy See became a State Party; the earlier without any reservations added and the latter attaching an interpretive declaration as well as reservations to its formal act of ratification. My analysis was likewise inspired by four major contemporary child abuse reports from Ireland captioned as ‘Ferns’ (2005), ‘Ryan’ (2009), ’Murphy’ (2009) and ‘Cloyne’ (2010) respectively. These reports document institutional and structural features of child care and education deemed gravely abusive, in the State or in the Church. This work demonstrates from CRC provisions such as Article 19 CRC (right to protection from violence) and Articles 28, 29 CRC (educational rights) that the right to non-violent education must be synthesized in order to secure for States Parties to the Convention to come under an international obligation to undertake all necessary measures for protecting schoolchildren from violence and abuse, and from sexual abuse in particular. In this respect schoolchildren in educational settings owned and managed by Catholic institutions co-regulated by canon law provisions must not be left behind, just because their schools are not under immediate State control; as fully documented by the reports Catholic schools may become places where children are severely threatened by risks of violence and sexual abuse. Since the Convention was put into force making reality of children’s rights requires an act of implementation starting from rights provisions to be transposed into state duties and obligations with the help of a tripartite typology of ‘Respect’, ‘Protect’ and ‘Fulfil’ (RPF) which has become an accepted framework for analysis; these methodological aspects are fully explained and elaborated in the thesis with application to the right to non-violent education. Accordingly, what had to follow was an examination of the extent to which the Holy See and Ireland have discharged their protective obligations emanating from the RPF scheme. Thus, an obligation of implementation falls on the Holy See as a State Party to the Convention, and some initial steps of legal reform in the interest of children and their rights were undertaken, in the domain of criminalization, mandatory reporting and investigation. In response to revelations about child abuse by clerics and Catholic run institutions the Pontifical Commission for the Protection of Minors was set up, but its institutional independence is not secured. As a jurisdiction Ireland became highly active initiating a wealth of legislative, administrative, social and educational measures for the implementation of children’s rights and some core aspects of criminalization, mandatory reporting, investigation and inspection are discussed in this study as well as comprehensive sexuality education which is shown to be an educational measure appropriate for protecting schoolchildren from sexual abuse in schools. Although this was not always done in a fully coordinated and consistent manner, over time a multitude of single steps were taken by organs of the State for child protection in Ireland. Consequently, in order to avoid dangerous fragmentation of services it proved necessary to streamline the statutory regime under which child protection agencies and crime prevention organs presently co-operate, in the education sector, among others. As my analysis demonstrates, it might be helpful to consider an orientation for legislators, administrators and the judiciary along the lines of the right to non-violent education so as to prioritise children as independent right-holders and their actual needs.Item Administrative discretion at first instance: power, people and place(University College Cork, 2024) Ryan, Aisling M; Donson, Fiona; Poustie, Mark; University College CorkFirst instance decision makers in public bodies have considerable ‘wiggle room’ in coming to their decisions regarding individual claims and grievances. Yet this discretion is not unbounded. In certain circumstances, the courts will step in and quash administrative decisions. The test for control of discretionary power has been in a state of flux for decades (Hogan, Morgan and Daly, 2019). Decision makers have a range of decisions open to them, but at the outer edges of that range it is difficult to ascertain when, if, or why a court will intervene. The Irish courts have traditionally adopted a deferential approach to judicial review of administrative action, demonstrating a great reluctance to interfere with administrative decisions, often on the basis of the separation of powers under Bunreacht na hÉireann. Irish legal scholarship has a tendency to ‘constitutionalise’ administrative issues (Donson and O’Donovan, 2015). This has led to a dearth of administrative justice research in the Irish context, with administrative matters instead resolved and debated by reference to constitutional values. While constitutional values are an important aspect of the debate, they are not everything. Daly (2019) opines that for public lawyers to remain relevant and influential we must embrace a plurality of principles, sources and methodologies. Thomas (2022) argues that there is a need for a pluralistic approach to the study of administrative law and “other forms of administrative law in action that exist outside the courts and the range of purposes they serve”. In this thesis, I look both to legal doctrine and beyond legal doctrine to investigate how administrative discretion is understood by the judiciary and by administrative decision makers in developing a rich, novel account of administrative discretion at first instance. I adopt a socio-legal approach in answering four core research questions that ground this study. In answering these questions, I employ different research methods to offer different ways of ‘knowing’ about discretion. I carry out a detailed doctrinal mapping of case law on control of discretionary power, that feeds into a socio-legal understanding of discretion. I achieve this by turning the tables on traditional legal discourse to ask how discretion is really understood by the officials who exercise discretion in their daily interactions on the frontline of public administration. These officials are central actors in the delivery of public services (Lipsky, 1980), and are instrumental in developing an ‘internal’ understanding of administrative law (Mashaw, 1983). I use anonymised interview data from interviews with administrative decision makers working on rights-based adjudications in the International Protection Office of the Department of Justice, and Workplace Relations Commission. This type of qualitative research is novel in the Irish context, and illuminates many paradoxes between the law-on-the-books and the law-in-action. I reflect on my research experiences in an honest and open account of the difficulties of carrying out empirical work in public bodies, with the aim of developing a dialogue for further research in the field. This thesis makes several major contributions to public law scholarship. It challenges the current ontological underpinnings of discretion and control of discretionary power as legal phenomena by illuminating administrative decision makers as the ‘animators’ of administrative law. In doing so, I develop a new ‘complex-liminal-malleable’ understanding of discretion and control of discretionary power, and use the nebulous concept of discretion to develop socio-legal themes related to the exercise of discretion at first instance: repetition of error; bureaucratic institutional culture; and dissonant decision making. Through these themes, I combine doctrinal, empirical and theoretical research to provide a fuller account of discretion, and identify pathways for future research on these intersecting topics. What emerges is a truly novel, considered, and thought-provoking study of administrative discretion at first instance.Item 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 CouncilThis 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.