http://hdl.handle.net/10197/6627 Fri, 03 Nov 2017 13:02:57 GMT 2017-11-03T13:02:57Z http://hdl.handle.net/10197/8719 Ten Years of European Family Law: Retrospective Reflections from a Common Law Perspective Ní Shúilleabháin, Máire Council Regulation 1347/2000 (the ‘Brussels II Regulation’) marked the beginning of the ‘Europeanization’ of family law. This article analyses the development of EU family law policy over the last decade, with particular focus on the common law perspective. It is argued that the Brussels II Regulation and the ensuing EU family law measures have had (and will have) a significant negative impact in English and Irish law, clashing with internal legal policy and sitting uneasily alongside existing legal structures. Fri, 01 Oct 2010 00:00:00 GMT http://hdl.handle.net/10197/8719 2010-10-01T00:00:00Z http://hdl.handle.net/10197/8718 Foreign Divorce Recognition and Residence: A Critical Analysis of H v H Ní Shúilleabháin, Máire In this article, it is argued that the dissenting judgment of O’Donnell J. is preferable to the approach adopted by the majority. However, insofar as the minority approach is anchored in English common law developments, it is submitted that O’Donnell J. ought to have given more emphasis to the House of Lords judgment in Indyka v Indyka and less to the earlier English Court of Appeal judgment in Travers v Holley. In following Travers v Holley, O’Donnell J. overstated the need for symmetry between jurisdiction and recognition criteria and ultimately arrived at a test which is logically indefensible. Sat, 01 Apr 2017 00:00:00 GMT http://hdl.handle.net/10197/8718 2017-04-01T00:00:00Z http://hdl.handle.net/10197/8717 Marriage, Divorce and Stagnation in the Irish Conflict of Laws Ní Shúilleabháin, Máire This article will explore the deficiencies and anomalies in the current law and will seek to identify the policy changes that are necessary for the appropriate alignment of the existing law with ECHR obligations. It will argue that private international law is not being taken sufficiently seriously and will explore the wider ramifications of official apathy in this sphere. Sat, 01 Nov 2014 00:00:00 GMT http://hdl.handle.net/10197/8717 2014-11-01T00:00:00Z http://hdl.handle.net/10197/8623 EU Regulation of Charitable Organizations: The Politics of Legally Enabling Civil Society Breen, Oonagh B. This article takes issue with those who view the introduction of a European regulation as the most effective way to facilitate nonprofit activity in the EU. It argues that the judicial route and not the legislative route may prove more fruitful if the aim is to achieve greater legal enablement of civil society organizations within the European Union. Tue, 01 Jan 2008 00:00:00 GMT http://hdl.handle.net/10197/8623 2008-01-01T00:00:00Z http://hdl.handle.net/10197/8622 Neighbouring perspectives: legal and practical implications of charity regulatory reform in Ireland and Northern Ireland Breen, Oonagh B. A close study of the charity law reform proposals for Ireland and Northern Ireland reveals common concerns relating to charity governance and regulation that are shared with Scotland, England and Wales. Ireland and Northern Ireland share similar policy objectives in terms of charity regulation: to strengthen the charity sector and prevent fraud. Provision of a charity register, greater transparency regarding the decisionmaking process for charitable status, a visible regulator for a sector that engages so often with the public through fundraising appeals and the reputation and continued success of which is based on trust and public confidence, these are all positive steps. Tue, 01 Jan 2008 00:00:00 GMT http://hdl.handle.net/10197/8622 2008-01-01T00:00:00Z http://hdl.handle.net/10197/8621 Frontal lobes and older sex offenders: a preliminary investigation Fazel, Seena; O'Donnell, Ian; Hope, Tony; et al. We tested the hypothesis that frontal lobe changes are associated with sexual offending in older men by administering frontal lobe tests to 50 older men incarcerated for sexual offences and to 50 older controls who were in prison for other crimes. This was part of a wider study on the psychiatric and personality characteristics of sexual offenders (Fazel et al., 2002). The control group was chosen in order to attempt to account for non-specific offender effects, and allow for comparison with demographic variables that might confound any potential association. Mon, 01 Jan 2007 00:00:00 GMT http://hdl.handle.net/10197/8621 2007-01-01T00:00:00Z http://hdl.handle.net/10197/8619 Prisoners, Politics and the Polls Enfranchisement and the Burden of Responsibility Behan, Cormac; O'Donnell, Ian In 2006, the Irish Government introduced legislation to allow prisoners to vote. Drawing on international developments in jurisprudence and criminal justice, this article examines the background to, and wider significance of, this change in the law. A lack of political and media opposition ensured the relatively unnoticed passage of this reform through Parliament. Prisoners had their first opportunity to exercise the franchise in 2007. While the number who registered was small, the turnout was relatively high. The seemingly benign desire to restore a measure of civic engagement to prisoners may conceal a narrow desire to see them lead law-abiding and 'responsible' lives rather than encouraging them to engage in a process of personal transformation or become reflective agents for change. Wed, 05 Mar 2008 00:00:00 GMT http://hdl.handle.net/10197/8619 2008-03-05T00:00:00Z http://hdl.handle.net/10197/8550 The Challenge of European Competition Network Convergence in the Definition of Harm to Competition Maher, Imelda The evolution of legal concepts central to the enforcement of competition law is a key focus of legal analysis by courts, academics and practitioners. What receives less attention, as it is still a relatively new phenomenon in the field, is how the operation of the European Competition Network (ECN) has affected the development of those concepts and specifically how convergence may occur in relation to them. This paper addresses how network enforcement on EU competition law has impacted on the notion of restriction of competition. It explores two themes, one substantive and one institutional by first, examining how restrictions of competition by object have been addressed by some National Competition Authorities (NCAs) and second, by analyzing the institutional tools that facilitate or constrain conceptual convergence. In doing so, it takes cognizance of the comment of Advocate General Wahl in Cartes Bancaires that the classification of an agreement as a restriction of competition by object must be necessarily circumscribed because 'the analytical framework that the Court is led to identify will be imposed both on the Commission and on the national competition authorities, whose awareness and level of expertise vary'. The paper first briefly outlines what is meant by restriction by object before turning to look specifically at developments in relation to MFN/RPM clauses and, more briefly, pay-for-delay clauses. It does not have regard to the role of national courts (save incidentally) but does address the role of the preliminary reference procedure in bringing the enforcement practices of the NCAs before the Court of Justice of the EU (CJEU). The paper then turns to institutional tools and constraints within the legal architecture of the ECN, specifically in light of proposed reforms, before concluding. Sun, 01 Jan 2017 00:00:00 GMT http://hdl.handle.net/10197/8550 2017-01-01T00:00:00Z http://hdl.handle.net/10197/8486 Justice, 2016 Black, Lynsey Wed, 01 Feb 2017 00:00:00 GMT http://hdl.handle.net/10197/8486 2017-02-01T00:00:00Z http://hdl.handle.net/10197/8470 Protecting public interest reporting: what is the future of journalistic privilege in Irish law? Carolan, Eoin In its opening statement, the Disclosure s Tribunal has drawn attention to several unanswered questions about the Irish law on journalistic privilege It is beyond the scope of a short note such as this to propose answers to the issues identified by the Tribunal – not least because the facts pertaining to any assertion of privilege have not been established. The purpose of the note is rather to consider the conceptual framework in which these questions might be addressed. This is necessary given the relatively sparse authority on journalistic sources in Ireland. Sat, 01 Apr 2017 00:00:00 GMT http://hdl.handle.net/10197/8470 2017-04-01T00:00:00Z http://hdl.handle.net/10197/8431 Vulnerable Childhood, Vulnerable Adulthood: Direct Provision as Aftercare for Aged-Out Separated Children Seeking Asylum in Ireland Ní Raghallaigh, Muireann; Thornton, Liam Ireland's approach to after-care for aged-out separated children is problematic. Currently, upon reaching the age of 18, most separated young people are moved to direct provision, despite the fact that the State can use discretionary powers to allow them to remain in foster care. Direct provision is the system Ireland adopts providing bed and board to asylum seekers, along with a weekly monetary payment. Separated young people in Ireland are in a vulnerable position after ageing out. Entry into the direct provision system, from a legal and social work perspective, is concerning. Utilising direct provision as a 'form of aftercare' emphasises Governmental policy preferences that privilege the migrant status of aged-out separated children, as opposed to viewing this group as young people leaving care. In this article, utilising a cross disciplinary approach, we provide the first systematic exploration of the system of aftercare for aged-out separated children in Ireland. In doing so, we posit two core reasons for why the aftercare system for aged-out separated children has developed as it has. First, doing so ensures that the state is consistent with its approach to asylum seekers more generally, in that it seeks to deter persons from claiming asylum in Ireland through utilisation of the direct provision system. Second, while the vulnerability of aged-out separated children is well-documented, the State (and others) ignore this vulnerability and are reluctant to offer additional aftercare supports beyond direct provision. This is due, we argue, to viewing aged-out separated children as having a lesser entitlement to rights than other care leavers, solely based on their migrant status. Sun, 01 Jan 2017 00:00:00 GMT http://hdl.handle.net/10197/8431 2017-01-01T00:00:00Z http://hdl.handle.net/10197/8270 Justice, 2015 Black, Lynsey The year 2015 saw the Department of Justice and Equality continue to deal with the fallout from the events of 2014, a year in which Alan Shatter’s resignation as minister was accompanied by the reassignment of Brian Purcell from the post of secretary general 1 and the retirement of Martin Callinan as garda commissioner. The shifts of 2014 followed allegations of improper practice regarding penalty points, the recording of phone calls to Garda stations and serious criticisms of how the department responded to these issues. In 2015 the repercussions of these events were still being felt as the department pledged to enhance accountability and restore public confidence. In this vein, the year brought further challenges for An Garda Síochána in the form of the highly critical Garda Inspectorate report, which recommended far-reaching reforms for the organisation. Tue, 16 Feb 2016 00:00:00 GMT http://hdl.handle.net/10197/8270 2016-02-16T00:00:00Z http://hdl.handle.net/10197/8229 Media, Public Attitudes and Crime Black, Lynsey A chapter exploring media and crime in the Republic of Ireland and Northern Ireland addresses two signally different jurisdictions. What little work there is from the Republic of Ireland relates largely to the media's role in a 1996 moral panic on gangland crime, while the literature on Northern Ireland encompasses a jurisdiction moving from a critical perspective on state/media relations to one now exploring representations of 'ordinary' crime. The chapter provides an overview of the content of crime in the media, public attitudes and fear of crime in the two jurisdictions within the context of international literature and theory. Tue, 01 Dec 2015 00:00:00 GMT http://hdl.handle.net/10197/8229 2015-12-01T00:00:00Z http://hdl.handle.net/10197/8181 The Representation of Offending Women in the Irish Press: A Content Analysis Black, Lynsey Reductive definitions characterise many of the representations of women in the media. These depictions are frequently built around commonly understood and uncritically accepted gender norms which restrict the range of roles women can inhabit. 'Offending' women are particularly vulnerable to such limitations of representation due to their relative invisibility; such women are substantially constructed and understood through media reporting. The operation of this process in Ireland has not been the subject of extensive study; this article presents research on the representation of offending women in Irish newspapers within the context of the existing literature. Through a content analysis of the output of four newspapers over a one-month period, the representation of offending women in Irish newspapers was found to rely on familiar narratives of maternity, sexuality and pathology. In addition to these tropes, issues of ethnicity and nationality were also present, demonstrating the need for an understanding based on intersectionality. Thu, 01 Oct 2015 00:00:00 GMT http://hdl.handle.net/10197/8181 2015-10-01T00:00:00Z http://hdl.handle.net/10197/8180 Immigration (Reform) (Regularisation of Residency Status) Bill 2014 Thornton, Liam On the invitation of Senator David Norris, I drafted the Immigration (Reform) (Regularisation of Residency Status) Bill 2014.  Thu, 16 Oct 2014 00:00:00 GMT http://hdl.handle.net/10197/8180 2014-10-16T00:00:00Z http://hdl.handle.net/10197/8179 Direct Provision as Aftercare for Aged-Out Separated Children in Ireland Ní Raghallaigh, Muireann; Thornton, Liam Ireland’s approach to after-care for 'aged-out' separated children is problematic. Currently, upon reaching the age of 18, most separated young people are moved to 'direct provision', despite the fact that the State can use discretionary powers to allow them to remain in foster care. Direct provision is the system Ireland adopts providing bed and board to asylum seekers, along with a weekly monetary payment. Separated young people in Ireland are in a vulnerable position after ageing out. Entry into the direct provision system, from a legal and social work perspective, is concerning. Utilising direct provision as a 'form of aftercare' emphasises Governmental policy preferences that privilege the migrant status of aged-out separated children, as opposed to viewing this group as young people leaving care. Utilising a cross disciplinary approach, this article reviews the literature to critically analyse these issues from socio-legal and social work perspectives. This analysis will be placed in the context of primary qualitative research with experiences of separated children and young people and key stakeholders. This article concludes, that the administrative and legal approaches to aged-out separated children tend to limit the ability of the State to provide adequate aftercare supports to these young people. Ultimately, their migrant status is privileged over their status as care leavers. Garret Fitzgerald Autumn School: The Significance of the Social Sciences for 21st Century Ireland, Session: 'Exploring the Margins of Irish Society', University College Dublin, Dublin, Ireland, 19 October 2015 Mon, 19 Oct 2015 00:00:00 GMT http://hdl.handle.net/10197/8179 2015-10-19T00:00:00Z http://hdl.handle.net/10197/8163 Confusingly compliant with the ECHR: The Release of Life Sentence Prisoners in Ireland Griffin, Diarmuid; O'Donnell, Ian The release of life sentence prisoners has been criticised for its discretionary and political nature and the failure to afford basic procedural rights to prisoners seeking early release. The process, which has not changed for many years, contrasts with parole decision-making in many European jurisdictions, which has been the subject of intense scrutiny accompanied by reforms that often focused on depoliticising and formalising the making of release decisions. Such reforms have been adopted as a result of domestic pressures as well as the influence of the supranational institutions of Europe. For example, the parole process in the UK has been transformed following ECtHR rulings, with decision-making becoming increasingly independent and judicial, resulting in a range of legal rights accruing to those affected by it. Thu, 01 Dec 2016 00:00:00 GMT http://hdl.handle.net/10197/8163 2016-12-01T00:00:00Z http://hdl.handle.net/10197/8149 Prisoner coping and adaptation O'Donnell, Ian The contours of imprisonment have been reshaped over the past 50 years. This chapter explores continuity and change in the pains of confinement, highlighting a variety of ways that prisoners cope with an environment characterised by conflict, disconnection and tedium. Tue, 01 Nov 2016 00:00:00 GMT http://hdl.handle.net/10197/8149 2016-11-01T00:00:00Z http://hdl.handle.net/10197/8118 Traversing Disciplinary Silos: Marriage, Private International Law and the ECHR Ní Shúilleabháin, Máire The focus of this paper is on the English conflicts rules affecting marriage – and how they are impacted by human rights law. As far as human rights law is concerned, the emphasis will be on the European Convention on Human Rights (ECHR) – in particular, Article 8 ECHR (right to respect for family life), Article 12 ECHR (right to marry) and Article 14 ECHR (right to be protected against discrimination in the enjoyment of Convention rights) - but other instruments of international human rights law will also be considered. Culture, Dispute Resolution and the Modernised Family (International Centre for Family Law, Policy and Practice Triennial International Conference), King's College London, London, United Kingdom, 6-8 July 2016 Fri, 08 Jul 2016 00:00:00 GMT http://hdl.handle.net/10197/8118 2016-07-08T00:00:00Z http://hdl.handle.net/10197/7930 Irish Jurors: Passive Observers or Active Participants? Jurors in Civil and Criminal Trials Howlin, Niamh  What was the role played by jurors in civil and criminal trials from the late eighteenth to the late nineteenth century? This article establishes that during this period, juries in Ireland played a relatively active role. It examines individual reports of civil and criminal trials and considers the nature of juror participation during this period, establishing that jurors frequently questioned witnesses, berated counsel, interrupted judges, demanded better treatment and added their own observations to the proceedings. This article compares the nature and level of interaction from different categories of jury – civil and criminal, common and special. It asks why Irish jurors continued to be active participants until late in the nineteenth century, and how the bench and bar received their input. It also suggests that English jurors may have played a more active role during this period than previously thought. Finally, the article considers some possible reasons for the silencing of Irish jurors by the late nineteenth century.                          Wed, 01 Jan 2014 00:00:00 GMT http://hdl.handle.net/10197/7930 2014-01-01T00:00:00Z http://hdl.handle.net/10197/7808 The Comparative Method in Legal Research: The Art of Justifying Choices Paris, Marie-Luce Comparative law is a thriving area in the study of t he law which has attracted, in the last decades, a growing interest in legal scholarship and legal edu cation. The expanding literature published in quality specialised outlets as well as a steadfast nu mber of research events organised by universities, research institutes and other numerous organisations all attest the phenomenon. It is difficult to find an academic law curriculum which does not comprise a course in comparative law in some form, whether as an introductory course in the first years of study, or as a more substantial course at a later stage. A comparative perspective may also be embedded, in a more or less systematic way, in the study of the different subjects of law (i.e. contract law, commercial law, constitutional law, family law, procedural law...). Comparative legal studies are also increasingly being pursued at doctoral level. In a sense, ‘we are all comparatists now’, or bound to be. Wed, 01 Jun 2016 00:00:00 GMT http://hdl.handle.net/10197/7808 2016-06-01T00:00:00Z http://hdl.handle.net/10197/7807 The European Convention on Human Rights Act: Implementation Mechanisms and Compliance Paris, Marie-Luce The Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights (ECHR), is the ‘essential reference point for the protection of human rights in Europe’. Concluded by the Council of Europe (CoE) on 4 November 1950, the ECHR defines rights and freedoms which the Contracting parties ‘shall secure to everyone within their jurisdiction’ under Art 1 of the ECHR, and sets up the mechanisms for controlling Contracting parties’ compliance with the obligation to secure t hese rights and freedoms. Since its entry into force on 3 September 1953, the ECHR has arguably become the single most successful international instrument of human rights protection, as attested by the activity of its Court. The European Court of Human Rights (ECtHR or Court) has ruled in over 20,000 cases on many societal issues such as assisted suicide, domestic slavery, abortion-related questions, adoption by homosexuals, discrimination against Roma, or the wearing of the Islamic headscarf in schools and universities. The geographical scope of the protection under the ECHR, which covers 47 state parties with a combined population of over 800 million people, is another s ign of its prominence, as is the fact that the European Union (EU) is now legally bound to become a party to it under Art 59(2) of the ECHR. All 47 members of the CoE, which include the 28 member sta tes of the EU, are subject to the international supervision of the ECtHR. 5 Also, in accordance with the principle of subsidia rity (ie that compliance with ECHR rights is better ensured at domestic level), the ECHR now forms an integral part of the domestic legal order of all state parties. Despite these achievements, the ECHR system faces a number of challenges which call for further initiat ives in order to guarantee the long-term effectiveness of its enforcement mechanism, the imp rovement of the work and legitimacy of its court in particular. Thu, 22 Oct 2015 00:00:00 GMT http://hdl.handle.net/10197/7807 2015-10-22T00:00:00Z http://hdl.handle.net/10197/7734 A View from Outside the EU Reception Acquis: Reception Rights for Asylum Seekers in Ireland Thornton, Liam Ireland, as a state on the periphery of Europe 'benefits' geographically from limited protection claims. Despite the small nature of the jurisdiction, it is important to reflect upon and consider the impact of EU law upon Irish domestic law. The chapter has two core aims. First, to consider the degree to which Ireland respects, protects and fulfills (or otherwise) selected reception conditions, including accommodation/shelter, the right to financial allowances, the right to work and withdrawal or reduction of reception conditions for asylum seekers. This will be analysed with respect to the political engagement upon questions on reception for asylum seekers within Ireland that assists in understanding why Ireland does not want to be formally bound by the EU's Reception Conditions Directive 2003 and/or the Recast Reception Conditions Directive 2013. Second, the role of the domestic courts in Ireland as regards challenges to Ireland's reception regime for asylum seekers and attempted reliance on European Union law, will be described and considered. Fri, 01 Jan 2016 00:00:00 GMT http://hdl.handle.net/10197/7734 2016-01-01T00:00:00Z http://hdl.handle.net/10197/7733 Introduction Ni Mhuirthile, Tanya; O'Sullivan, Catherine, LL.M, Ph.D.; Thornton, Liam Fundamentals of the Irish Legal System: Law, Policy and Politics sets down and examines the Irish legal system in a clear and accessible manner, while also requiring the student to think about deeper issues relating to law and its interaction with society. Key features Explains and critically assesses how Irish law is made and applied. Focuses on what the law is, the concept of the rule of law, sources of law, the civil and criminal court systems, Irish law and international law, alternative dispute resolution, the role of judges, solicitors and barristers in the Irish legal system and the administration of justice. Explains the intricacies of the Irish legal system, while also providing analysis and discussion on key areas and controversies. Includes a section on how to find, read and analyse legislation, cases, other textbooks and journal articles so that students can put their knowledge into practice.Key learning features. A clear and logical structure. Includes practical examples, tips and advice. Dedicated legal insight sections that assist students in understanding law in its societal context throughout. Exercises, time to reflect and case focus features throughout. About the Authors Dr Tanya Ní Mhuirthile is a lecturer in law in the School of Law and Government, Dublin City University.Dr Catherine O'Sullivan is a lecturer in law in the School of Law, University College Cork. Dr Liam Thornton is a lecturer in law in the School of Law, University College Dublin. Fri, 01 Jan 2016 00:00:00 GMT http://hdl.handle.net/10197/7733 2016-01-01T00:00:00Z http://hdl.handle.net/10197/7718 The survival secrets of solitaries O'Donnell, Ian A white paper on crime famously described imprisonment as 'an expensive way of making bad people worse' (Home Office 1990: para. 2.7). The inevitable harms of incarceration include the entrenchment of community disadvantage, the sundering of family ties, and the limiting of human potential. And all of this comes at a huge financial cost: £35,000 per prisoner per year according to recent figures from the Ministry for Justice (2013: table 1). But prison does not destroy all of the people all of the time. Prisoners are resilient and even in the bleakest environments they find opportunities to mature and, occasionally, to flourish. Tue, 01 Mar 2016 00:00:00 GMT http://hdl.handle.net/10197/7718 2016-03-01T00:00:00Z http://hdl.handle.net/10197/7712 The Politics of Jury Trials in Nineteenth-Century Ireland Howlin, Niamh This article considers aspects of lay participation in the Irish justice system, focusing on some political dimensions of the trial jury in the nineteenth century. It then identifies some broad themes common to systems of lay participation generally, and particularly nineteenth-century European systems. These include perceptions of legitimacy, State involvement and interference with jury trials, and issues around representativeness. The traditional lack of scholarship in the area of comparative criminal justice history has meant that many of the commonalities between different jury systems have been hitherto unexplored. It is hoped that this paper will contribute to a wider discussion of the various commonalities and differences in the development of lay participation in justice systems. Sun, 01 Nov 2015 00:00:00 GMT http://hdl.handle.net/10197/7712 2015-11-01T00:00:00Z http://hdl.handle.net/10197/7650 The aims of imprisonment O'Donnell, Ian The stated aims of imprisonment became markedly less ambitious when the confidence that characterised the nineteenth-century reform movement was displaced by a realisation that places of confinement – no matter how well designed or humanely intentioned – could never 'grind rogues honest and idle men industrious'. Today the emphasis is on risk reduction and performance management; lofty aspirations have been trumped by narrow measures of target delivery. In an attempt to find principled common ground upon which to advance the debate, a new formulation is offered in this chapter, namely: the aim of imprisonment is to reconstitute the prisoner’s spatiotemporal world without causing avoidable collateral damage. It is argued that this minimalist statement provides a foundation upon which to build prison regimes that are oriented towards the future and acknowledge that all prisoners, no matter what they have done, possess the capacity to redirect their lives. Devoid of hope, imprisonment is pointless pain. Mon, 01 Feb 2016 00:00:00 GMT http://hdl.handle.net/10197/7650 2016-02-01T00:00:00Z http://hdl.handle.net/10197/7594 Child Abuse Images and Cleanfeeds: Assessing Internet Blocking Systems McIntyre, T. J. One of the most important trends in internet governance in recent years has been the growth of internet blocking as a policy tool, to the point where it is increasingly becoming a global norm. This is most obvious in states such as China where blocking is used to suppress political speech; however, in the last decade blocking has also become more common in democracies, usually as part of attempts to limit the availability of child abuse images. Numerous governments have therefore settled on blocking as their 'primary solution' towards preventing such images from being distributed (Villeneuve 2010). Child abuse image blocking has, however, been extremely controversial within the academic, civil liberties and technical communities, and this debate has recently taken on a wider public dimension. At the time of writing, for example, public pressure has forced the German Federal Government to abandon legislation which would have introduced a police run system while the European Parliament has also rejected Commission proposals for mandatory blocking (Baker 2011; Zuvela 2011). Why have these systems been so controversial? Two lines of criticism can be identified, which might be termed the practical and the principled. The practical argument claims that blocking is ineffective, with ill-defined goals and easily evaded by widely available circumvention technologies (see e.g. Callanan et al. 2009). The principled argument, on the other hand, is that blocking systems undermine the norms associated with freedom of expression in democratic societies (Brown 2008). This latter argument stems from the fact that blocking sits at the intersection of three different regulatory trends – the use of technological solutions ('code as law'), a focus on intermediaries and the use of self-regulation in preference to legislation – which individually and all the more so collectively create a risk of invisible and unaccountable 'censorship by proxy' (Kreimer 2006; McIntyre & Scott 2008). This chapter introduces and evaluates these claims by examining three prominent examples of child abuse image blocking – the United Kingdom Internet Watch Foundation ('IWF') Child Abuse Image Content ('CAIC') list, the European Union sponsored CIRCAMP system and United States hash value systems. It discusses the operation of each system and the extent to which the critics' concerns are borne out. It concludes by considering the lessons which might be learned for proposals to extend blocking to other types of content. Tue, 01 Jan 2013 00:00:00 GMT http://hdl.handle.net/10197/7594 2013-01-01T00:00:00Z http://hdl.handle.net/10197/7593 Casting a Cold Eye on the Origins and Development of an All-Island Charter of Rights Egan, Suzanne; Murray, Rachel One of the most striking outcomes of the Good Friday/Belfast Agreement ('Agreement') was the extent to which the establishment of human rights institutions and mechanisms was brought center-stage into the shaping of the political settlement. The dynamic talks process that led to the signing of the Agreement resulted in an extensive range of obligations in regard to human rights on the part of the Irish and British governments, many of which were implemented very soon afterwards. Paragraph 10 of the 'Rights, Safeguards and Equality of Opportunity' section of the Agreement makes mention of a trans-jurisdictional human rights initiative that would mimic the institutional arrangements provided for elsewhere in the Agreement. Specifically, it vests jurisdiction in a Joint Committee of the two Human Rights Commissions to 'consider, among other matters, the possibility of establishing [an all-island] charter [of Rights], open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland. But, despite the implications of such a potentially transformative constitutional proposal, to date, the Charter has been the subject of negligible political engagement in both jurisdictions. Undoubtedly, there are a number vital issues that must be considered in attempts to construct an all-island Charter of Rights, given the numerous potential models for its implementation. Accordingly, in order to place the matter in context, Part I of this Essay reviews the background to the clause in the Agreement which envisaged the Charter; Part II discusses the progress that has been made to date by the Joint Committee in fulfilling its mandate; and finally, Part III offers some tentative reflections for a roadmap ahead in the current political climate. Fri, 01 Jan 2010 00:00:00 GMT http://hdl.handle.net/10197/7593 2010-01-01T00:00:00Z http://hdl.handle.net/10197/7592 The Necessary Elements of Torture: A Consideration of the Views of the Human Rights Committee in Giri v Nepal Egan, Suzanne In the case of Giri v Nepal, the Human Rights Committee has entered the fray in regard to the vexed question of how to distinguish "torture" from "inhuman" or "cruel" treatment in legal terms. The case concerned a complaint by a Nepalese farmer about his arbitrary arrest, detention and torture by soldiers on account of his suspected membership of the Communist Party in Nepal. Thu, 01 Nov 2012 00:00:00 GMT http://hdl.handle.net/10197/7592 2012-11-01T00:00:00Z http://hdl.handle.net/10197/7591 The Optional Protocol to the UN Convention Against Torture: Paying the Price for Prevention Egan, Suzanne The successful elaboration of the Optional Protocol to the Convention Against Torture, and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment in 2002 certainly gave rise to cautious grounds for optimism. On its face, the Protocol is an innovative and promising addition to the cluster of international human rights instruments which were already in place to combat torture and ill-treatment world-wide. Its chief potential lies in the framework for torture prevention which it establishes, comprising both a national and international element. Specifically, the Protocol provides for the establishment of national preventive mechanisms to monitor the treatment of detainees at the local level; and, a "new generation of United Nations treaty body", the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the SPT) to operate at the international level. Unfortunately, the SPT’s first three annual reports indicate that in the space of only four years since its entry into force, a major chasm has already developed between the theoretical framework established under the Protocol and the reality of its implementation. This article begins by describing in more detail the raison d’être for the Protocol; the framework of implementation established by it; and the unfortunately halting progress made so far in getting it off the ground. Tue, 01 Dec 2009 00:00:00 GMT http://hdl.handle.net/10197/7591 2009-12-01T00:00:00Z http://hdl.handle.net/10197/7590 A Charter of Rights for Ireland: An Unknown Quantity in the Good Friday/Belfast Agreement Egan, Suzanne; Murray, Rachel The basic aim of the Good Friday/Belfast Agreement was to try to achieve a political settlement to the conflict in Northern Ireland. While the channels for the settlement were to be primarily institutional, the importance of safeguarding the rights of both communities in Northern Ireland by addressing equality and justice issues was recognized, to varying degrees, by all parties to the process that led to the drafting of the Agreement. As the negotiations progressed, the human rights section of the Agreement grew exponentially, moving ‘from the margins to the mainstream’ so that the final Agreement contains a whole section on human rights protections. Not only have these particular elements of the Agreement come to fruition, but they also have received a considerable amount of public and political interest as well as academic comment and analysis. Buried within the human rights chapter, however, is a concept that has so far received minimal interest or enthusiasm from any quarter. That is the reference in paragraph 10 of the 'Rights, Safeguards and Equality of Opportunity' chapter to the possibility of establishing an all-island Charter of Rights. The purpose of this article is threefold. First, it traces the genesis of the Charter of Rights concept through to its inclusion in the Good Friday/Belfast Agreement; secondly, it examines the approach thus far taken by the Joint Committee of the two human rights commissions to the task entrusted to them in relation to the Charter by the Agreement; and finally, it explores some of the issues that need to be considered and the challenges faced by that Committee in future efforts to assist in the construction of any such Charter. In so doing, it describes the political and legal difficulties faced in attempts not only to formulate agreement on human rights but also to create a legal document which may be applicable to two jurisdictions. It concludes by suggesting ways in which the project may be progressed. Mon, 01 Oct 2007 00:00:00 GMT http://hdl.handle.net/10197/7590 2007-10-01T00:00:00Z http://hdl.handle.net/10197/7589 Strengthening the United Nations Human Rights Treaty Body System Egan, Suzanne The United Nations High Commissioner for Human Rights has recently published her much anticipated report on strengthening the United Nations (UN) human rights treaty system. The latest in a series of initiatives launched by the UN over the years to improve the beleaguered treaty system, the report contains a series of recommendations aimed at improving the impact of the treaty system on rights-holders and duty-bearers at the national level. The proposals in the report are based on years of extensive consultations with key stakeholders in the treaty body system that were designed to intensify awareness of the current challenges facing the system as well as to stimulate suggestions for reform. This article considers in detail the potential of the High Commissioner’s proposals to tackle the problems in the system and their overall feasibility in the current political climate. Sat, 01 Jun 2013 00:00:00 GMT http://hdl.handle.net/10197/7589 2013-06-01T00:00:00Z http://hdl.handle.net/10197/7515 The Statute of Westminster, 1931 - An Irish Perspective Mohr, Thomas The Statute of Westminster Act, 1931 enjoys a prominent place in general histories of Canada, Australia, New Zealand and other former Dominions of the British Empire.  This famous legal instrument is seen as an important milestone in the evolution of the Dominions from colonial status to fully sovereign states.  By contrast this famous legal instrument receives far less attention in works dedicated to Irish history even though the Anglo Irish Treaty of 1921 granted the self-governing Irish Free State the same status as the afore-mentioned Dominions. In addition, since the 1930s the Irish courts have maintained that the provisions of the Statute of Westminster had no impact on Irish constitutional law. This article argues that the marginalisation of the Statute of Westminster in Irish historiography and Irish law is particularly unfortunate when the proper context of this historic piece of legislation is fully appreciated.  This article will examine the impact of the Irish Free State on the enactment of the Statute of Westminster and the closely related issue of the impact of the Statute of Westminster on the Irish Free State.  Examination of these inter-related themes reveal perceptions of the Statute of Westminster at the time of its enactment when parliamentary debates focussed on its significance to the development of Anglo Irish relations at the expense of consideration of its impact on the evolution of the British Empire. This article will also examine the significance of the Statute of Westminster in advancing Irish sovereignty and in facilitating the creation of the current Irish Constitution that was brought into force in 1937.  Fri, 01 Nov 2013 00:00:00 GMT http://hdl.handle.net/10197/7515 2013-11-01T00:00:00Z http://hdl.handle.net/10197/7503 A Single Currency for the British Empire?: A Warning for the Euro Mohr, Thomas Debates concerning the future of the Euro and the recent EU fiscal treaty might seem to be without precedent in Irish and European history. This is not so. Proposals for the creation of currency unions and for dealing with the economic challenges that inevitably follow have been debated for over two millennia. Examples include monetary unions between city states of ancient Greece, the attempts to coordinate the currencies of nineteenth century German states and the Latin Monetary Union that existed in continental Europe between 1866 and 1927. Tue, 01 Jan 2013 00:00:00 GMT http://hdl.handle.net/10197/7503 2013-01-01T00:00:00Z http://hdl.handle.net/10197/7502 Book Review: The Origins of the Irish Constitution, 1928-1941 Mohr, Thomas The self-governing Irish state has had two Constitutions since its secession from the United Kingdom. Both of these Constitutions suffer from difficulties of image and identity. The circumstances that surrounded the adoption of the Constitution of the Irish Free State in 1922 resulted in claims that this document was actually a British imposition. The Constitution that succeeded it in 1937 has suffered from perceptions that it was heavily influenced by members of the clergy and so reflects the doctrine and ideology of the Catholic church. One of the great tasks of Irish constitutional scholarship in recent decades is the examination of the accuracy of such popular images. The Origins of the Irish Constitution 1928 -­- 1941 published by the Royal Irish Academy is the latest contribution to this field. Tue, 01 Jan 2013 00:00:00 GMT http://hdl.handle.net/10197/7502 2013-01-01T00:00:00Z http://hdl.handle.net/10197/7501 Preserving Legal Memory Mohr, Thomas Irish legal history went up in smoke on 30 June 1922. The explosion of munitions and resulting fire at the Irish Public Records Office at Dublin’s Four Courts marked a tragic end to the first act the Irish civil war. One eyewitness to the explosion , the author Ernie O’Malley, described legal documents that dated as far back as the thirteenth century "gyrating in the upper air like seagulls". Partly burnt documents were blown all over the city of Dublin. Mon, 01 Dec 2014 00:00:00 GMT http://hdl.handle.net/10197/7501 2014-12-01T00:00:00Z http://hdl.handle.net/10197/7483 Lord Cave, the British Empire and Irish Independence - A Test of Judicial Integrity Mohr, Thomas This article examines the career of Lord Cave and his influence on the history of the Irish Free State within the British Empire. Cave was a controversial figure in Anglo Irish politics in the early twentieth century. Nevertheless, he held the office of lord chancellor for much of the 1920s and presided over a number of important appeals to the Judicial Committee of the Privy Council emanating from the Irish Free State. Cave also played an influential role during the Imperial conference of 1926. This article argues that Cave’s pre-occupation with maintaining the integrity of the British Empire influenced decisions in a number of key appeals to the Privy Council that directly or indirectly affected the Irish Free State. It also examines the conclusions of other scholars who maintain that the history of the Irish appeal shows that the Judicial Committee of the Privy Council was occasionally influenced by political policies pursued by the British government. This article challenges these conclusions. It argues that the decisions used to support these contentions were actually influenced by the personal views of Lord Cave and not by policies embraced by the British government. This supports the conclusion that the Judicial Committee of the Privy Council of the early twentieth century was, after all, an independent court of law. Tue, 01 May 2012 00:00:00 GMT http://hdl.handle.net/10197/7483 2012-05-01T00:00:00Z http://hdl.handle.net/10197/7425 Ordering Things: The Irish State Administration Database Hardiman, Niamh; Scott, Colin New theoretical approaches to the state have posed challenges for the comparative analysis of the organizational features of states. The analysis of state bodies and state agencies has largely been confined to the sub-discipline of public administration, and has been resistant to the systematic classification that has made progress possible in other areas of comparative politics. This article argues that there is much to be gained by reconceptualizing state bodies in a comparative context. This paper profiles the classification system underlying the construction of the Irish State Administration Database (ISAD). This paper sets out a new approach to conceptualizing the organizational and functional features of states. ISAD not only provides a valuable research resource for work on the Irish state, but also can provide a framework for building a comparative research agenda. Sun, 01 Jan 2012 00:00:00 GMT http://hdl.handle.net/10197/7425 2012-01-01T00:00:00Z http://hdl.handle.net/10197/7382 MhicMathúna v Ireland Thornton, Liam This is a feminist re-imagining of the Supreme Court decision MhicMathúna v Ireland [1995] 1 I.R. 454. The actual Supreme Court decision in this case continues to have a profound impact upon how the Irish superior courts view constitutional socio-economic rights claims. This feminist judgment seeks to re-situate the legal analysis of constitutionalised socio-economic rights claims. However, this, as is seen from the feminist judgment, has not been an easy task. The plaintiffs' in this case attempted to argue for increased socio-economic rights protection, by, in the main arguing that 'unmarried mother' were being treated too 'generously' in comparison with the heteronormative marital family ideal of a working father, stay at home mother with child care responsibilities. This re-imagined judgment comes to the same conclusion as the Irish Supreme Court on the plaintiffs' claims-that nothing prevents the Oireachtas (Irish Parliament) from providing financial allowances and supports to one parent families. However, this feminist judgment re-evaluates past jurisprudence and re-positions the legal place of one parent families (in particular 'unmarried mothers') as being capable of having constitutional rights protections, that can result in the Oireachtas providing special supports in recognising the significant caring function of this vulnerable group. A conclusion, albeit arguably obiter, reached in this feminist re-imagined judgment, is that, 'While not proven in this instance, there may be occasions, where, due to the absolute failure of the State to ensure individuals and families have a standard of living appropriate to this society, where human dignity is debased and/or bodily integrity is not respected and/or individuals right to develop as a human person is seriously hampered, that the Courts are constitutionally mandated to intervene.' Fri, 01 Apr 2016 00:00:00 GMT http://hdl.handle.net/10197/7382 2016-04-01T00:00:00Z http://hdl.handle.net/10197/7363 Judicial Oversight of Surveillance: The Case of Ireland in Comparative Perspective McIntyre, T. J. This chapter examines how judicial oversight can regulate secret state surveillance, with a particular focus on Irish, European Convention on Human Rights (ECHR) and European Union (EU) law. It begins by considering the general arguments for judicial oversight and the types of oversight structures which can be used. It then examines the extent to which Irish, ECHR and EU law require judicial oversight in particular circumstances. Next, it takes as a case study the Irish experience of data retention. It concludes with suggestions for improving the effectiveness of judicial involvement in surveillance. Fri, 01 Apr 2016 00:00:00 GMT http://hdl.handle.net/10197/7363 2016-04-01T00:00:00Z http://hdl.handle.net/10197/7346 Tackling the Rise of Child labour in Europe: Homework for the European Court of Human Rights Egan, Suzanne The phenomenon of child labour is on the rise in Europe in the wake of the economic crisis. Specific action in tackling this practice faces a range of challenges including the often hidden nature of the work, cultural attitudes and gendered constructions of the role of children especially in domestic settings. This article explores the range of international standards and efforts made by numerous human rights tribunals aimed at combating the practice, with particular emphasis on the jurisprudence of the European Court of Human Rights. It concludes that the Court has drawn erratically on its standard methodologies (including the comparative technique) in interpreting Article 4 of the ECHR, thus providing limited guidance to European States in getting to grips with child labour. Wed, 01 Jul 2015 00:00:00 GMT http://hdl.handle.net/10197/7346 2015-07-01T00:00:00Z http://hdl.handle.net/10197/7286 Review of Liz Heffernan with Úna Ní Raifeartaigh: Evidence in Criminal Trials Mohr, Thomas R.L. Sandes’ Criminal Practice, Procedure and Evidence (Irish Free State), published in 1930, was its focus on Irish case law and legislation. This novel approach was justified as "the logical consequence of our detached national status" . By contrast, Heffernan’s twenty-first-century text takes an unashamedly comparative approach and makes extensive use of national and international sources and scholarship. Fri, 01 May 2015 00:00:00 GMT http://hdl.handle.net/10197/7286 2015-05-01T00:00:00Z http://hdl.handle.net/10197/7281 Cybercrime: Towards a Research Agenda McIntyre, T. J. This chapter sets out to take stock of our knowledge on cybercrime in Ireland. How prevalent is it? How is it policed, and by whom? Are Garda resources for tackling cybercrime sufficient? What are the substantive laws criminalising online behaviour? Do these meet international standards? Tue, 01 Dec 2015 00:00:00 GMT http://hdl.handle.net/10197/7281 2015-12-01T00:00:00Z http://hdl.handle.net/10197/7245 Socio-Economic Rights and Ireland Thornton, Liam First, this chapter considers the debates as to whether socio-economic rights can be considered human rights. Second, consideration is provided to the legal obligations upon Ireland under the ICESCR. Third, this chapter provides an overview of legislative provision and the debates surrounding constitutional recognition of socio-economic rights. In concluding, this chapter notes the significant difficulties that lie ahead for justiciable social-economic rights in Ireland. Thu, 01 Oct 2015 00:00:00 GMT http://hdl.handle.net/10197/7245 2015-10-01T00:00:00Z http://hdl.handle.net/10197/7067 Safeguarding the Restraint of Trade Doctrine from EU Competition Law: Identifying the Threat and Proposing Solutions Lucey, Mary Catherine The EU Council of Ministers is currently considering a Directive on actions for financial damages for infringements of EU competition law. The directive intends to encourage private litigation in national courts where either Art 101 TFEU and/or Art 102 TFEU have been infringed. Art 101 TFEU prohibits anti-competitive arrangements and Art 102 TFEU prohibits the abuse of a dominant position. While the EU directive has been drafted with the involvement of powerful competition law epistemic community of academics and practitioners, little attention has been paid to the implications of increased private litigation of EU competition law for the operation of national law. By taking the perspective of national law, this article examines difficult questions regarding the interface between EU competition law and national law, in particular the Restraint of Trade Doctrine (ROTD), where both legal regimes concurrently apply to a restrictive clause but produce different outcomes. Sat, 01 Nov 2014 00:00:00 GMT http://hdl.handle.net/10197/7067 2014-11-01T00:00:00Z http://hdl.handle.net/10197/7066 Agencification, Regulation and Judicialization: American Exceptionalism and Other Ways of Life Scott, Colin This paper suggests that a regimes approach, which analyses the variety of state and non-state actors participating within any given regulatory space, might provide a better framework within which to understand the nature and contribution of agencies to regulatory activity. The regimes approach has important implications for understanding the nature and problems of judicialization, since our emphasis is on judicialization as it affects all of the actors in the regime, and not just agencies (where they exist). More generally this approach offers a different perspective on the critical question of state capacity for regulatory governance. Tue, 01 Jan 2008 00:00:00 GMT http://hdl.handle.net/10197/7066 2008-01-01T00:00:00Z http://hdl.handle.net/10197/7044 A Report on the Application of the European Convention on Human Rights Act 2003 and the European Charter of Fundamental Rights: Evaluation and Review Kingston, Suzanne; Thornton, Liam This project explores the extent that the European Convention on Human Rights (the Convention), the European Convention on Human Rights Act 2003 (the ECHR Act), and the European Charter of Fundamental Rights (the Charter) have been utilised before Irish courts and specified tribunals. The remit of this research report explores rights under these instruments that have been: Utilised in argument before Irish Superior Courts and specified tribunals, with a clear identification of the areas of law at issue, and the precise right under the ECHR Act, the Convention and the Charter, that has been argued and/or considered; Relied upon by domestic courts and tribunals in coming to their decisions; Interpreted in light of Ireland's constitutional framework.  Wed, 01 Jul 2015 00:00:00 GMT http://hdl.handle.net/10197/7044 2015-07-01T00:00:00Z http://hdl.handle.net/10197/7022 From Welfare State to Regulatory State: Meta-Regulation and Beyond Scott, Colin The literature on the rise of the regulatory state in Europe has tended to suggest that the regulatory state, as a mode of governance, has substantially disp laced the instruments and institutions which together comprised the welfare state as the dominant mode of governing in the twentieth century. Majone has suggested that the regulatory state mode involves not only distinctive instruments and institutions, no tably rules and regulatory agencies, but also a distinctive ethos which tends to prioritise the correction of market failure over state functions linked to redistribution and macro-economic stabilization. Similar trends in Australia, it is claimed, led to welfare rights groups recasting their claims on public policy actors in terms of market rather than redistributive terms. However, though instruments and institutions may have seen significant changes, it is clear that political objectives concerning welfa re remain a significant component of government activity in most European states and further afield. I suggest in this article that there is evidence to support the argument that regulatory governance modes have supported and enhanced aspects of welfare pr ovision, for example making aspects of provision more transparent, promoting capacity for seeking redress, and more generally clarifying accountability relationships and responsibilities. A next step is to note a degree of disenchantment with the regulator y state, as classically conceived, because of weaknesses in command and control methods, and concerns over counter-productive and unintended effects. With regulatory thinking solutions to these problems lie in alternative modes of governance drawing on net works and capacities for steering of self-regulation. I suggest that such techniques have much to offer contemporary welfare programmes. Thu, 25 Dec 2014 00:00:00 GMT http://hdl.handle.net/10197/7022 2014-12-25T00:00:00Z http://hdl.handle.net/10197/7021 Spontaneous Accountability Scott, Colin Contemporary ideas about governance are dominated by a loss of faith in both hierarchical modes of control and state-centric conceptions of governing. This tendency has caused both scholars and public policy makers to search for evidence that other modes and loci of control are or might be effective in supplementing or replacing hierarchy and the state. These other modes include governance through networks and communities, governance through competition and markets, and governance through architecture. Sat, 01 Jul 2006 00:00:00 GMT http://hdl.handle.net/10197/7021 2006-07-01T00:00:00Z