Law - Doctoral Theses

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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, Mary
This 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.
Administrative discretion at first instance: power, people and place
(University College Cork, 2024) Ryan, Aisling M; Donson, Fiona; Poustie, Mark; University College Cork
First 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.
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.

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