School of Law (Scholarly Articles)

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  • Publication
    Rules as code and the rule of law: ensuring effective judicial review of administration by software
    (Taylor and Francis Group, 2024-02-09) Kennedy, Rónán; Science Foundation Ireland
    This paper considers the possible benefits and substantial risks of ‘Rules as Code’, the parallel drafting of legislation and codification in software, which has been the subject of attention from policy-makers and pilot studies in some jurisdictions. It highlights the long history of these approaches, and the challenges of ossification, mis-translation of rules, and separation of powers problems. It also examines in the detail the Australian Pintarich case, which demonstrates the inadequacy of conventional judicial review of automated decision-making. It outlines some possible solutions to these issues — two ‘internal’ to development processes (greater transparency, and literate pair programming) and two ‘external’ (expanding the capacity of judicial review to look beyond a specific citizen/state interaction and consider the design and development of the controlling software system, and greater cross-disciplinary awareness by lawyers).
  • Publication
    Toolkit on best practice for health and social care professionals to respect the rights of persons with disabilities in public health emergencies
    (Centre For Disability Law And Policy, University of Galway, 2023) Flynn, Eilionóir; Doyle Guilloud, Suzanne; Parker, April; Health Research Board
    Introduction & purpose of toolkit. The Covid-19 pandemic put health and social care services under unprecedented strain. Before the development of effective vaccines, hospitals and intensive care units were pushed to the limit (and beyond) of their human and medical resources. Disability services were required to adapt to the continuously evolving pandemic-related rules and guidance. While it is to be acknowledged that the individuals working in these environments were working in extremely challenging conditions, and often engaged in innovative practice in order to try to preserve and protect the rights of persons with disabilities, there are clear lessons to be drawn from the Covid-19 period - both around the structuring of health and social care services, as well as practices which should be adopted in relation to people with disabilities in public health emergencies of this kind in the future. This toolkit is intended for use as an advocacy tool by disabled persons’ organisations (DPOs) in order to ensure that health and social care professionals (H&SC professionals) comply with their obligations under international human rights law in times of public health emergencies. It centres the experience of persons with disabilities, while also incorporating those of H&SC professionals and policymakers. It is primarily informed by the requirements of the UN Convention on the Rights of Persons with Disabilities (CRPD). It is complemented by a toolkit outlining the obligations of States with respect to the rights of persons with disabilities in times of public health emergencies, which can be found on the ResPoNCE project website.
  • Publication
    Toolkit on best practice for states to respect the rights of persons with disabilities in public health emergencies
    (Centre For Disability Law And Policy, University of Galway, 2023) Flynn, Eilionóir; Doyle Guilloud, Suzanne; Parker, April; Health Research Board
    Introduction & purpose of toolkit. The Covid-19 pandemic exposed the speed at which the rights of persons with disabilities can be either deprioritised or forgotten altogether in times of public health emergencies. The pandemic demonstrated major gaps in State planning for the protection and vindication of the rights of persons with disabilities in public health emergencies. It also magnified the pre-existing inequalities which people with disabilities experience. There were issues with accessibility of information and of testing and vaccination centres, the pausing or ceasing of some disability services, failures in the provision of financial support, denials of reasonable accommodation and increased isolation of some people with disabilities. This toolkit is intended for use as an advocacy tool by disabled persons’ organisations (DPOs) in order to ensure that States comply with their obligations under international human rights law in times of public health emergencies. It is primarily informed by the requirements of the UN Convention on the Rights of Persons with Disabilities (CRPD), as well as the experiences of people with disabilities during the Covid-19. Based on this, it provides examples of best practice, as well as resources which DPOs can rely on when lobbying States for CRPD-compliant reform and action at the intersection of public health emergencies and disability. It is complemented by a toolkit outlining the obligations of health and social care professionals with respect to the rights of persons with disabilities in times of public health emergencies, which can be found on the ResPoNCE project website.
  • Publication
    Life imprisonment and the Parole Act 2019: Assessing the impact of legislative reform
    (Judicial Studies Institute, 2020) Griffin, Diarmuid
    This article examines the Parole Act 2019 and its likely impact on decision-making surrounding the release of life sentence prisoners in Ireland. The informal and political nature of the release process for life sentence prisoners has been the subject of considerable criticism. The Act will transition the release decision from the Minister for Justice and Equality to a statutory Parole Board. Drawing from national and supra-national sources as well as empirical data, the article analyses key provisions in the legislative framework including the independence of the Parole Board, the procedural standards and the criteria to be applied in individual cases.
  • Publication
    When is a Plan Not a Plan? The Supreme Court Decision in “Climate Case Ireland”
    (Thomson Reuters Round Hall, 2021-01-07) Kennedy, Rónán; O'Rourke, Maeve; Roddy-Mullineaux, Cassie
    [No abstract available]
  • Publication
    De-camouflaging chameleons: Requiring transparency for consumer protection in the Internet of Things
    (Queen's University Belfast, School of Law, 2019) Kennedy, Rónán
    Information and communications technology (ICT) and the development of the so-called ‘Internet of Things’ (IoT) provide new and valuable affordances to businesses and consumers. The use of sensors, software, and interconnectivity enable very useful adaptive capabilites. However, the rapid development of so-called ‘smart devices’ means that many everyday items, including software applications, are now impenetrable ‘black boxes’, and their behaviours are not fixed for all tme. They are ‘chameleon devices’, which can be subverted for corporate deceit, surveillance, or computer crime. While aspects of the IoT and privacy have been discussed by other scholars, this paper contributes to the literature by bringing together examples of digital devices being surreptiously diverted to purposes undesired by the consumer, reconceptualising these in the context of Foucauldian governmentality theory, and setting out a variety of proposals for law reform.
  • Publication
    Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights
    (Wiley, 2019-12-17) Kenna, Padraic; Simón‐Moreno, Héctor
    The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU s interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas namely, to the Mortgage Credit Directive (2014) a major EU harmonising measure and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.
  • Publication
    Translating popular sovereignty as unfettered constitutional amendability
    (Cambridge University Press, 2019-12-03) Daly, Eoin
    Popular sovereignty translated as unfettered constitutional-amendment power - Weakness of constituent power as justification for unfettered amendability - Alternative concept of sovereignty as unaccountability of constituted power - Popular sovereignty as unaccountability of the referendum verdict - Sovereignty emerging at end-point, not inception of constitutional-amendment process
  • Publication
    Stokes v Christian Brothers High School: An exercise in splendid isolationism?
    (Thomson Round Hall, 2015) Quinlivan, Shivaun
    This article will examine the case of Stokes v Christian Brothers High School Clonmel. The particular focus of the article is to question the failure to assess the prohibition on indirect discrimination within the overarching context of our European obligations, particularly our obligations in relation to the Racial Origin Directive and the Framework Employment Directive. Prior to discussing the Stokes case the article provides a brief overview of the jurisprudence on indirect discrimination particularly as applied in the context of sex discrimination. To a large extent the Court of Justice of the European Union (CJEU) has fashioned the parameters of the concept which first received legislative recognition in the Burden of Proof Directive. By necessity the evidential barrier developed in respect of gender discrimination had to be altered on the introduction of Article 19 Treaty on the Functioning of the European Union (TFEU) (ex Article 13 Treaty Establishing European Community (TEC)), which broadened the prohibited grounds of discrimination to include sexual orientation, religion or belief, disability, racial and ethnic origin and age. Traditionally the CJEU relied heavily on the use of statistical data to show a disparate impact. It is unlikely that those same statistics exist or can be collated in respect of grounds such as sexual orientation or racial origin. The Article 19 TFEU Directives introduced a new definition of indirect discrimination with a lower evidential barrier and, more fundamentally, one that is not reliant exclusively on statistical data. The Equal Status Acts 2000-2014 incorporated this new definition of indirect discrimination into Irish law.
  • Publication
    Disrupting the status quo? Discrimination in academic promotions
    (Thomson Round Hall, 2017) Quinlivan, Shivaun
    In June 2016 the HEA Report of the Expert Group: HEA National Review of Gender Equality in Higher Education Institutions (Gender Equality Review) reported and stated that there was a need for “radical action” without which they could not guarantee that Higher Education Institutes (HEIs) would “ever be free of gender inequality.” This report was commissioned in the aftermath of the now high profile case of Sheehy-Skeffington v National University of Ireland Galway (hereinafter NUI Galway) and the controversy surrounding this decision. This paper addresses the decision in Sheehy-Skeffington v NUI Galway, the fall out from that decision and the recommendations of the HEA’s Gender Equality Review as regards recruitment and promotion. In particular this paper looks at that recommendation considered most radical, yet also considered necessary namely the introduction of mandatory gender quotas. This paper seeks to assess why it was deemed necessary for the Expert Review Group to recommend the introduction of mandatory quotas and to posit the question – what happens if the HEI’s do not comply with that recommendation?
  • Publication
    Reasonable accommodation in education
    (Community Law & Mediation, 2015-12-08) Quinlivan, Shivaun
    Abstract: This Article examines the duty to provide reasonable accommodation in education as provided for by the Equal Status Acts. The duty to provide reasonable accommodation is a reactive duty as such it is an individualised response to a particular situation. The duty imposes on an educational establishment the duty to accommodate a student with a disability. The duty as expressed in the ESA is weak, and arguably some of the interpretations further weaken an already weak duty.
  • Publication
    American and Irish perspectives on collaborative practice
    (Thomson Reuters Round Hall, 2011) Healy, Connie
    In their Report on Alternative Dispute Resolution,1 the Law Reform Commission (LRC) have recognised Collaborative Practice as “an emerging method of advisory dispute resolution”,2 where, “the negotiation becomes client centred”.3 They refer extensively throughout the report to the standards set by the International Academy of Collaborative Professionals (IACP) and the Uniform Collaborative Law Act 2010 (UCLA) in the US, as models for the development of a code of practice for collaborative practitioners in Ireland. This article will examine the position in the US, the UCLA and the IACP standards as referred to by the LRC, and their impact on the development of collaborative practice here.
  • Publication
    Once more with ‘sympathy’ but no resolution for intended mothers: the EU, Ireland and the surrogacy dilemma
    (Taylor & Francis, 2017-10-26) Healy, Connie
    This article examines the decision of the Court of Justice of the European Union (CJEU) in Z v A Government Department and the Board of Management of a Community School and the court's interpretation of existing EU legislation on whether commissioning or intended mothers are entitled to paid leave equivalent to maternity benefit. It highlights the failure of the CJEU in this case to call for specific EU legislation on the issue of surrogacy. The Irish Courts have been more proactive in this regard. The Supreme Court has acknowledged that 'pending the introduction ... of legislation dealing with this field, it is ... not for the courts to attempt to resolve the complex questions that need to be addressed'. This article compares recent decisions of the Irish Courts to that of the CJEU as they struggle to keep abreast with modern society in the absence of legislation at national and EU level.
  • Publication
    An analytical framework for employment regulation: investigating the regulatory space
    (Emerald, 2016-12-12) Inversi, Cristina; Buckley, Lucy-Ann; Dundon, Tony
    Purpose - The purpose of this paper is to advance a conceptual analytical framework to help explain employment regulation as a dynamic process shaped by institutions and actors. The paper builds on and advances regulatory space theory.Design/methodology/approach - The paper analyses the literature on regulatory theory and engages with its theoretical development.Findings - The paper advances the case for a broader and more inclusive regulatory approach to better capture the complex reality of employment regulation. Further, the paper engages in debates about the complexity of employment regulation by adopting a multi-level perspective.Research limitations/implications - The research proposes an analytical framework and invites future empirical investigation.Originality/value - The paper contends that existing literature affords too much attention to a (false) regulation vs deregulation dichotomy, with insufficient analysis of other "spaces" in which labour policy and regulation are formed and re-formed. In particular, the proposed framework analyses four different regulatory dimensions, combining the legal aspects of regulation with self-regulatory dimensions of employment regulation.
  • Publication
    Autonomy and prenuptial agreements in Ireland: A relational analysis
    (Cambridge University Press, 2018-04-03) Buckley, Lucy-Ann
    Unlike England and Wales, Ireland has not yet moved from the traditional common law rejection of prenuptial agreements. Nevertheless, similar policy concerns continue to be debated in both jurisdictions, particularly regarding the balance between autonomy and fairness concerns, and gender equity. In 2007, an Irish ministerial Study Group recommended limited recognition of prenuptial agreements, foreshadowing similar proposals by the Law Commission for England and Wales in 2014. However, the Irish recommendations were never implemented, despite sustained lobbying. This paper draws on relational theory to scrutinise the Study Group s proposals, identifying its core assumptions and their implications. The paper contends that Irish courts dealing with spousal agreements have tacitly accepted liberal conceptualisations of autonomy, which may lead to injustice. Furthermore, the Study Group s recommendations have been overtaken by events. Recent decisions on spousal agreements emphasise respect for party autonomy, without interrogating what this means. This could be problematic if applied to prenuptial agreements. Accordingly, the paper suggests modifications to the Study Group s proposals, to address relational concerns. In this regard, the paper speaks to the broader debate on family autonomy, and draws on comparative perspectives, including the recommendations of the Law Commission for England and Wales, and the Canadian experience.
  • Publication
    Sutherland v Hatton: A Solution to Ireland's Occupational Stress Question?
    (2002) Connolly, Ursula
    The Irish Courts have not dealt with the issue of occupational stress claims in any great detail. However, in a recent UK decision, Sutherland v Hatton1 , where four separate appeals were joined together, the Court of Appeal took the opportunity to consider the question of such claims in depth. There has been a growing awareness of the issue since the English decision of Walker v Northumberland County Council2 in 1995, where an employee successfully sued his employer for personal injury arising from two nervous breakdowns suffered as a result of workplace stress.3 It is a debate that has gripped both the National Authority for Occupational Health and Safety (HSA)4 in Ireland and the European Union, which has designated 2002 as ‘Workplace Stress Prevention Year’. While it is accepted that the prevention of stress is a valuable focus for the debate, there is no question that stress is an unavoidable element of most occupations, and in many cases does not lead to any adverse consequences. It is only when foreseeable injury arises as a result of occupational stress that an employer should face liability, but until this most recent decision there has been little judicial guidance in the area. The decision in Sutherland is valuable, as it lays down practical guidelines as to when liability may be imposed.
  • Publication
    Paternity fraud and the tort of deceit
    (Clarus Press, 2008) Connolly, Ursula
    Recent cases in England, Australia and the United States have seen efforts to expand the tort of deceit to allow a remedy in cases of paternity fraud. The tort of deceit has traditionally applied to commercial transactions and the divergent approaches taken by both the English and Australian courts point to the complexity of applying it to domestic arrangements. In England the tort was successfully applied to two cases involving cohabiting couples, P v B1 and A v B. 2 Meanwhile, the Australian High Court rejected the application of such a tort to a married couple in Magill v Magill3 largely on the basis that the court refused to apply the tort to representations relating to sexual fidelity. This article proposes to examine these cases and consider to what extent they are relevant to an Irish court. It will also briefly question whether the current emphasis on the biological parent is correct and whether courts should instead eschew the biological model in favour of the social model of parenthood, which arguably better reflects the best interests of the child.
  • Publication
    Corr v IBC - Civil liability and employee suicide
    (Clarus Press, 2007) Connolly, Ursula
    The English Court of Appeal decision in Corr v IBC Vehicles Ltd1 held that an employer could be found liable for the suicide of an employee. 2 Sedley and Wilson LJJ (with Ward LJ dissenting) overturned the trial court decision of Baker J. who had held that suicide was not a foreseeable kind of harm for which the employer could be held liable. The majority held that suicide did not have to be foreseeable as a different ‘kind of damage’, it would suffice that the depressive illness which gave rise to the suicide was foreseeable. This was based on the acceptance by the majority that suicide is a type of harm which flows from a depressive illness. The Court also held that suicide did not automatically attract the qualities of a novus actus interveniens so as to break the chain of causation
  • Publication
    Multiple publication and online defamation - recent reforms in Ireland and the UK
    (Masarykova Univerzita Nakladatelstvi,Masaryk University Press, 2012) Connolly, Ursula
     The multiple-publication rule, allowing for a new cause of action each time a defamatory statement is published, has applied to non-internet publications for well over a century. Its application to online publications however, has raised particular difficulties. Despite the rule finding judicial favour in most common-law jurisdictions (the US being a noted exception) the legislature in Ireland has recently abandoned it and plans are in place in the United Kingdom to do likewise. On the other hand Australian and Canadian courts have rejected arguments to abandon the rule. This article discusses both the legal and policy related reasoning behind the recent legislative developments in Ireland and the United Kingdom and considers whether these jurisdictions have tipped the balance too far in favour of publishers on the internet.
  • Publication
    Accessing justice in cases of occupational bullying in Ireland
    (Community Law & Mediation, 2016-07-07) Connolly, Ursula; Quinlivan, Shivaun
    Our understanding of the nature and effect of bullying behaviour has developed dramatically over the past forty or so years. Despite this however Ireland does not have a dedicated legal remedy for workplace bullying. Soft-law mechanisms such as Codes of Practice and policies, such as Dignity at Work policies, are welcome but legally ineffectual mechanisms for protecting employees from bullying behaviour. In the absence of a dedicated legally enforceable provision affected workers are required to rely on a range of actions, some of which were never designed with bullying in mind. These include constructive dismissals actions, personal injuries actions in negligence pursuant to health and safety legislation, discriminatory harassment actions and reliance on the industrial relations mechanism now operated by the Workplace Relations Commission. This paper argues that the inappropriateness of these provisions creates a lacuna in Irish law and acts as a barrier to access to justice for workers subjected to bullying. It further argues that as bullying undermines a person s right to dignity in the workplace in much the same way as discriminatory harassment, it should be similarly prohibited. It therefore argues that a specific legislative provision should be introduced which mirrors the level of protection offered against discriminatory harassment