Law - Doctoral Theses

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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.
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.
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.
A critical analysis of sea-fisheries enforcement in Ireland
(University College Cork, 2020-10-02) O'Keeffe, Laurie; McIntyre, Owen
Effective regulation goes hand in hand with a normatively effective enforcement regime. In the context of sea-fisheries law, it is crucial that the law is fit for purpose and that it is enforced effectively in order to meet sustainability and conservation objectives under the Common Fisheries Policy. Therefore, it is essential that Ireland is compliant with its enforcement obligations under EU fisheries law. Although regulation and enforcement has been researched extensively worldwide, sea-fisheries law and its enforcement in Ireland has been almost entirely neglected in the literature. Fisheries are a politically contentious issue and yet this intensely regulated area has never been the subject of dedicated academic research in Ireland. To the author’s knowledge, this research is the first comprehensive analysis of the sea-fisheries enforcement regime in Ireland. As the author is employed in the legal division of the national enforcement agency for sea-fisheries, the Sea-Fisheries Protection Authority, the research benefits from unique insights into how enforcement operates in practice, which would not otherwise be accessible. Therefore, the research takes a distinctly practical view of regulation and enforcement of sea-fisheries law in Ireland, with the benefit of a practitioner focus based on professional experience. The thesis undertakes a review of the key pieces of legislation governing sea-fisheries law which is enforced exclusively by criminal prosecution without any alternative sanction options. The effectiveness of this reliance on criminal prosecution is considered with a view to determining whether administrative sanctions could be introduced to supplement or replace the existing enforcement system. This may also have implications for other areas of regulation in Ireland, many of which are also reliant on criminal prosecution to enforce regulatory norms. In particular, the nature of what constitutes a crime is considered in order to inform a discussion of the utility of defining and prosecuting regulatory breaches as criminal offences. Discussion of the difficulties associated with criminal prosecution of regulatory offences is informed by the case law and selected case studies. A range of administrative sanction options are explored to establish whether they could provide an alternative solution to sea-fisheries enforcement. The constitutional hurdles which administrative sanctions in Ireland must overcome are analysed in order to determine the limits and boundaries of any potential administrative sanction regime. The thesis proposes how such a system might operate in practice, in light of various enforcement theories which may assist the regulator in the challenging task of implementing an effective, proportionate and dissuasive enforcement policy which upholds fair procedures and can withstand judicial scrutiny.
End-of-life decisions for young children: law, systems and Luhmann
(University College Cork, 2021-09-29) Somers, Caroline; Donnelly, Mary
This study interrogates the legal and medical system rationalities that drive child end-of-life decision-making (CELDM) in respect of the very young. Neither conventional rights discourse nor legal doctrine has shown itself capable of resolving or indeed providing a full understanding of the issues involved. This study therefore takes a variegated approach. On the factual level it explores ways in which decisions are reached in circumstances of high epistemic uncertainty amplified by the impact of rapid technological advancement. On the temporal level it analyses how it is possible for desired outcomes (death/life) to change very significantly in a relatively short period of time, in the absence of regulation or considered public debate, and how this may be deemed socially acceptable. On the conceptual level it utilises aspects of Niklas Luhmann’s theory of social systems to develop new research strategies and tools to analyse this complex societal issue. The analysis focuses on events in England and Wales, a jurisdiction with a rich reported history in this area. [**********] Academic discourse on CELDM has narrowed since the 1980s. Now a small number of themes are mined to great depth. There are serious consequences to a flattening of debate, not least the disjunction between experience and expertise. To achieve a more comprehensive understanding, without which we cannot work towards better answers, we need to ask a greater diversity of questions. Space must therefore be claimed within academic discourse for new types of engagement. This study attempts a new understanding of one of the most sensitive, acutely controversial medico-legal issues of our time. This has led, of necessity, to a resort to interdisciplinarity because the tools and methodologies available within legal scholarship are not sufficient. Systems theory, a recognised sub-discipline of sociology, brings new concepts, ontologies, research strategies and objectives. This is challenging but appropriate. Interdisciplinary scholarship requires that we reflect on knowledge while creating it because some social problems are so complex they require this kind of non-automatic engagement. [**********] In relation to law, Luhmann refused to supply a normative analysis of a normative discourse. This would involve prior commitment and unexamined assumptions. Instead he offered a cognitive approach, one that seeks to learn rather than to instruct. In relation to undecidable questions, including CELDM, or so called ‘wicked problems’, we may be persuaded by this. These are situations inhabited by ineradicable uncertainty, in which the correct answer cannot be deduced logically, and the issue remains a source of disagreement among reasonable people. And all the while decisions must be made, and whatever decision is made will bring profound irreversible consequences. In such circumstances the simple aggregation of norms, the imposition of a normative framework on a normative discourse, makes little sense as a starting point for analysis. [**********] This study therefore presents a deliberately cognitive engagement with the normative discourses of law and medicine. It follows a logical path mining the history of CELDM to understand why, in our previous society, it was accepted medical practice to allow children with relatively minor disabilities to go untreated. The thesis begins by providing a rich socio-historical analysis of clinical practice focused on the decades immediately prior to legal intervention in 1981, but taking in the longer view also; the history of institutionalisation in Britain. The ‘stigmata’ cases of 1981, R v Arthur and Re B, and their contemporary discourse, are explored in detail for the legal, medical and public attitudes recorded. 1981 is seen to mark a pivotal moment when the beginnings of change to a new medico-legal order in respect of CELDM are evident. [**********] These emerging dynamics in the medical system are interrogated using the tools of systems theory. They are dynamics to which the legal system would be required, in time, to respond. The discussion therefore turns to the gradual expansion in legal best interests rationality over the past three decades. The law is seen to remain open textured, but in practice to be more predictable and accompanied by more intellectual scaffolding than is sometimes allowed. The thesis ends with a consideration of the role of reform in legal academia, and the critical evaluation of two reform proposals in respect of CELDM. Throughout, Luhmann’s theory provides the framework for analysis. It justifies the selection of methods and configures the limitations of a study that is framed and formulated by a relationship of fidelity to its methodology. [**********] The contribution of this study is the creation of a new model through which to observe and analyse CELDM as a medico-legal issue. It is achieved in ways that are deeply contextualised, historically rich and secured by a robust conceptual underpinning.

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