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- PublicationAccountability in the Regulatory StateAccountability has long been both a key theme and a key problem in constitutional scholarship. The centrality of the accountability debates in contemporary political and legal discourse is a product of the difficulty of balancing the autonomy given to those exercising public power with appropriate control. The traditional mechanisms of accountability to Parliament and to the courts are problematic because in a complex administrative state, characterized by widespread delegation of discretion to actors located far from the centre of government, the conception of centralized responsibility upon which traditional accountability mechanisms are based is often fictional. The problems of accountability have been made manifest by the transformations wrought on public administration by the new public management (NPM) revolution which have further fragmented the public sector. In this article it is argued that if public lawyers are to be reconciled to these changes then it will be through recognizing the potential for additional or extended mechanisms of accountability in supplementing or displacing traditional accountability functions. The article identifies and develops two such extended accountability models: interdependence and redundancy.
3104Scopus© Citations 355 - PublicationServices of General Interest in EC Law: Matching Values to Regulatory Technique in the Public and Privatised SectorsAll the European Union Member States have long traditions of state activity in providing key services (such as the utilities, health and education) to their citizens and underpinning both such direct provision and provision of services by non-state actors with certain administrative or legal guarantees. In European Community doctrines they are referred to as ‘services of general interest’ within which is a narrower class of ‘services of general economic interest’. The diverse national public service traditions have been challenged both by the requirements of the single market and by other pressures such as fiscal crisis and broader public sector reform. This article examines the means by which services to which special principles should be applied can be identified and focuses on the range of sometimes contradictory values denoted by the term ‘services of general interest’, examining the range of regime types (based on hierarchical, competition-based and community forms) by which those values might be pursued. The concluding section suggests that the matching of values to techniques should not be made according to the importance of the values to be pursued, but rather by reference to which techniques are likely to be effective given the configuration of interests and capacities and existing culture within the target domain.
490Scopus© Citations 23 - PublicationRegulation and Governance Reforms for Ireland and the European UnionGovernance has become one of the most fashionable words to link to reform both of private and public sector institutions. With corporate governance both gove rnment and professional bodies such as the Irish Association of Investment Managers have sought to raise the standards of conduct of the directors of major companies. Major reforms both of the public service generally and of regulatory bodies in particula r are designed to enhance governance arrangements for the public sector. Responding to concerns about the legitimacy of European Union institutions the European Commission has published a White Paper on European Governance which proposes major reform of EU governance
155 - PublicationLaw without loyalty: The abolition of the Irish Appeal to the Privy CouncilConsiders the requirements in the Anglo Irish Treaty 1921 on the appeal to the Privy Council, the resulting provision in the Constitution and  Irish petitions heard by the Privy Council. Examines the Erne Fishery case and the Bill proposing the removal of the right to appeal to the Privy Council. Discusses the continuation of the appeal in the Erne Fishery case in spite of an amendment to the Bill to make it retrospective and the Privy Council's declaration that the abolition of the right of appeal was lawful.
1028 - PublicationSalmon of knowledgeIn landmark judgments in the 1930s and 1940s, the Irish courts drew on the evidence of brehon law for their interpretation of the modern law regarding fishing-rights in Irish inland waters. This paper examines the expert evidence offered in those cases by scholars in brehon law and medieval Irish history.
Scopus© Citations 1 1055 - PublicationPrivate Regulation of the Public Sector: A Neglected Facet of Contemporary GovernanceThe centrality of regulation among the tools deployed by governments is well established in the social science literature. Regulation of public sector bodies by non-state organizations is an important but neglected aspect of contemporary governance arrangements. Some private regulators derive both authority and power from a legal mandate for their activities. Statutory powers are exercised by private regulators where they are delegated or contracted out. Contractual powers take collective (for example, self-regulatory) and individuated forms. But a further important group of private regulators, operating both nationally and internationally, lack a legal mandate and yet have the capacity to exercise considerable power in constraining governments and public agencies. In a number of cases private regulators operate more complete regulatory regimes (in the sense of controlling standard setting, monitoring, and enforcement elements) than is true of public regulators. While private regulators may enhance the scrutiny given to public bodies (and thus enhance regimes of control and accountability), their existence suggests a need to identify the conditions under which such private power is legitimately held and used. One such condition is the existence of appropriate mechanisms for controlling or checking power. Such controls may take the classic form of public oversight, but may equally be identified in the checks exercised by participation in communities or markets.
1480Scopus© Citations 133 - PublicationThe Governance of the European Union: The Potential for Multi-Level ControlIn its White Paper on the Governance of the European Union the European Commission has adopted a narrow concept of governance which focuses almost exclusively on public institutions exercising legislative and executive power (in other words institutions of government). The article suggests that a theory of multi-level control in the EU would attend to greater variety both in the available governance institutions and the techniques of control. The deployment of an analysis grounded in theories of control suggests that the European Commission is substantially holding to a long-held preference for instruments of government premised on the exercise of hierarchical power. This reform path sits uneasily with revived concerns to render the governance of the EU more democratic. Equally it inhibits the generation of more efficient governance arrangements which place greater dependence on communities, competition, and design as alternative bases of control to hierarchy. Control theory suggests that the assertion of different reform agendas and institutional structures by other actors can check the more wayward(and arguably illegitimate) tendencies within the Commission plan, whilst drawing in alternative bases of control which, when combined, may yield technically superior governance solutions.
592Scopus© Citations 48 - Publication
1463 - PublicationHorgan v IrelandWhether the use of an Irish airport for United States aircraft engaged in a military attack in the State of Iraq violated Irish neutrality and was contrary to provisions of the Irish Constitution and/or international law.The OUP project International Law in Domestic Courts (ILDC) reports on domestic cases with international legal dimensions from over sixty-five different jurisdictions. As well as providing a summary of the most salient points of international legal concern, the case note provides commentary on the quality of legal reasoning utilised in the decision and the judgements compatibility with decided points of international law. Access to decisions is by subscription only.
747 - PublicationOrganizational Variety in Regulatory Governance: An Agenda for a Comparative Investigation of OECD CountriesAn analysis of organizational variety in regulatory governance must recognize that, contrary to the classical agency model, regulatory functions are commonly diffused among a number of public and sometimes private bodies. A regimes approach assists in understanding the ways in which diffuse regulatory power is exercised and in identifying central issues for analysis. In this article, six parameters for classifying organizations in regulatory regimes are addressed: ownership, legal form, funding, functions, powers, and governance level. An exploration of these parameters is suggestive of novel approaches to questions of independence and accountability. With wide diffusion of regulatory power, interdependence is as much a hallmark of the regulatory state as the application of any strong independence doctrine. Accountability may be better conceived as consisting both of formal judicial and political mechanisms and of informal day-to-day ways in which those exercising regulatory power have to account to others co-located within the space of a particular regulatory regime.
247 - PublicationRegulation in the Age of Governance: The Rise of the Post Regulatory StateThis chapter forms part of a larger project examining governance ‘beyond the regulatory state’. Governance has been defined in a variety of ways in both official and secondary literatures. In this chapter the ‘age of governance’ is conceived in terms of recognising the dispersal of capacities and resources relevant to the exercise of power among a wide range of state, non - state and supranational acto rs. It is claimed that ‘[t]he essence of governance is its focus on governing mechanisms which do not rest on recourse to the authority and sanctions of government’). An analysis in which governing is no longer seen as the exclusive prero gative of the nation state presents a challenge to the literature which argues that the last years of the twentieth century witnessed ‘the rise of the regulatory state’.
3268 - PublicationRegulatory Innovation and the Online ConsumerThe explosion of usage of the Internet has caused considerable anxiety concerning the capacity of states to fulfil the functions they have developed in protecting consumers. Online business is booming in many sectors. Key examples, investigated in this article, are online investing, Internet gambling, and e-shopping (sale of goods via the Internet). The article suggests that the high-level discourse of regulatory reform and innovation has been focused on what may be done with state instruments and agencies to address the problems. We argue for adjusting the focus and offer an analysis of examples of non-state mechanisms and actors with the potential to enhance regulatory protections.
416Scopus© Citations 26 - PublicationParadoxes of Independence and Accountability in Commonwealth Regulatory GovernanceIt has often been said that the welfare or provider - state has been substantially displaced by ‘the regulatory state’. This claim refers to a complex set of changes in public management involving: the separation of operational from regulatory activities in some policy areas, sometimes linked to privatization of the operational activities; a trend towards separating purchasers and providers of public services through pol icies of contracting out and market testing; a trend towards separation of operational from policy tasks within government departments, notably under the Commonwealth Services Delivery Agency Act 1997. Each of these policies shifts the emphasis of control, to a greater or lesser degree, from traditional bureaucratic mechanisms towards mechanisms of regulation.
234 - PublicationDubsky v IrelandCore issue: 1. Whether allowing over-flight and landing of military aircraft en route to Afghanistan in accordance with United Nations Security Council Resolution 1368 (2001) constitutes a breach of Ireland's neutral status. 2. Whether the 1907 Hague Convention constitutes customary international law. 3. Whether the United Nations Security Council can compel Ireland to commit an unconstitutional act.
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