Now showing 1 - 10 of 15
  • Publication
    Irish Legal Scholarship Abroad: The UK Experience
    (Round Hall, 2011-11-30)
    Emigration has been a significant feature of Irish life and, in more recent years, of Irish academic life also. This is despite – or because of - the growth in the number of Law Schools and law programmes in Ireland. There were four university Law Schools in 1980, the largest of which (UCD) had twelve academic staff. There are now seven university Law Schools with over 140 academic staff. In addition, several of the thirteen Institutes of Technology offer law degrees even though they do not have designated law departments. Letterkenny IT and Dublin IT, have a Department of Law and Humanities and a School of Social Sciences and Law respectively. Private colleges – DSB/Portobello, Griffith, Hibernia, and Independent Colleges – also offer law degrees. As the numbers graduating from Irish universities have increased, there has been an outflow of academics going overseas either through necessity or interest. Thus a brief trawl through the web brings to light Irish-educated academics based in Canada, France, Iceland, the Netherlands, the UK and the United States. This chapter offers a brief reflection on the cadre of Irish academics overseas and is prompted by a reflection on what is Irish legal scholarship. Is it scholarship exclusively about Irish law or scholarship produced by scholars based in Ireland or does it extend to Irish educated scholars based outside of Ireland who may or may not write about Irish law? The suggestion made here is that we should have regard to this last category of scholars in exploring the nature of Irish legal scholarship. In doing so, it adopts a broad brush examination of a particular group of scholars defined not by their research interests in a field of substantive law but by the fact that having received (some of) their tertiary education in Ireland, they are now academics based in the UK. The chapter first offers a brief reflection on what is a scholar and intellectual before turning to the Irish scholar in the UK and the data on publications about Irish law in Ireland, elsewhere and other publications. It then concludes.
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  • Publication
    The Supreme Court and EU Law: Reshuffling the Institutional Balance
    (Clarus Press, 2021-06-30) ;
    Irish Courts are not exclusively national courts. They form an integral part of a pan-European Union legal network where domestic courts are increasingly viewed by the Court of Justice of the European Union as European Courts. The Irish Courts, and in particular the Supreme Court, have had a significant role in the constitutional developments of the European Union but the way EU Law arises in the Supreme Court should not be characterised as one concerning constitutional crisis. EU law is an ordinary and integral part of the Irish legal system. This poses the question: to what extent are the Irish courts being Europeanised as a result of the increasing volume and significance of cases involving EU law? We created a database (https://zenodo.org/record/3843265#.YVxuDLhKjct) of all civil law cases before the Irish superior courts over a 10 year period. First, we briefly set out the overall picture for the Superior Courts and EU Law over 10 years before turning to focus on the Supreme Court and EU Law activity in 2019 where we consider some of the key issues that arose in the year in civil and criminal law, reflecting on what de Witte terms the reshuffling of the internal institutional balance and the potential horizontal dimension where national courts are impacting on institutional issues within other Member States.
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  • Publication
    The Law School: A Sense of Place
    (Gandon, 2013-11)
    An essay setting out the principles and practices that informed the design of the new Sutherland School of Law building by the academic director of the project.
      289
  • Publication
    The Common Travel Area
    (Cambridge University Press, 2022-01-20)
    The Common Travel Area is an arrangement between the UK, the Crown Dependencies (Bailiwick of Jersey, Bailiwick of Guernsey, and the Isle of Man) and Ireland by which British and Irish citizens can move freely and reside in either jurisdiction and enjoy associated rights and privileges, including the right to work, study and vote in certain elections, as well as to access social welfare benefits and health services. These arrangements have been disrupted by Brexit even though these arrangements long preceded Ireland’s and the UK’s membership of the EU. The retention of the CTA was largely uncontroversial for either state or for the EU when the UK chose to leave the EU. Nonetheless, Brexit has had two major effects: first, it heightened its visibility as it received considerable political and media attention in the early stages of the Brexit negotiations; second, Brexit crystallised the CTA through formalising it while both governments and the EU have allowed for its continued development. Thus, the CTA has moved from being a highly informal arrangement to becoming a cluster of laws, with an intergovernmental MOU, and the Protocol and legislation, most notably found in the Brexit statutes of Ireland and the UK. It is a distinct legal arrangement, recognised by and connected to but operating separately from the WA and the TCA which should insulate it to some degree from concerns surrounding the Protocol.
      27
  • Publication
    The Common Travel Area: The Limits of Codification
    (Oxford University Press, 2022-05)
    Chapter 6 by Imelda Maher examines Article 3 of the Protocol, entitled ‘Common Travel Area’ (CTA). Maher explains how the CTA is a long-standing arrangement which has allowed Irish and UK citizens to move freely between the two islands, and she underlines how Article 3 of the Protocol essentially enables the two countries to continue this practice, provided it respects the rights of natural persons conferred by EU law. At the same time, Maher shows how the CTA is a largely uncodified arrangement, which relies on multiple sources of law, including international agreements, bits of immigration legislation in the UK, and several memoranda of understanding (MoUs) on travel, access to health, and education. In fact, Maher stresses how the first legally binding recognition of the CTA could arguably be found in Protocol 20 to the EU Treaties, which exempted Ireland and the UK from joining the Schengen free movement zone, because of their CTA. While this provision of primary EU law will have to be removed at the next round of treaty revisions, according to Maher the CTA has today found a legal protection in the Protocol on Ireland/Northern Ireland. Yet, the CTA remains mostly a political commitment between the two governments, which suggests that its future remains somewhat uncertain.
      3
  • Publication
    The Necessary Complexity of Consent: Rules and Norms in EU Treaty Making
    (Cambridge University Press, 2019-12) ;
    The idea that EU treaties have become too difficult to amend is a recurring one. This article explores changing national constitutional rules and norms in the consent stage of EU treaty making in twenty-eight Member States between 1950 and 2016 asking how parliaments, people and courts came to be much more significant for consent, what the consequences of this shift are, and offering some tentative proposals as to how the challenges this raises could be addressed. EU treaty making has become more complex, but we argue that treaties should be more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate.
      232
  • Publication
    Four Meta-Doctrines of Regulatory Accountability in the European Union
    (Edward Elgar, 2017-02-01) ;
    Since the establishment of the European Economic Community in 1957, regulation, the promulgation of rules, coupled with mechanisms for monitoring and enforcement, has been a key instrument of governance. Arguably this fact and its implications have only been progressively realised following the publication of the seminal contribution of Giandomenico Majone in the 1990s. This reflection on regulation in the EU occurred at the same time as a double trend in EU regulatory governance, towards requiring or encouraging the development of independent regulatory agencies in the member states, while at the same time growing the number of independent agencies, some with forms of regulatory power, at the level of EU. These measures for the institutionalisation of regulation in agencies, albeit to a greater degree at national level than at EU level, made the dependence of the EU on regulatory instruments simultaneously both more obvious and more challenging. Amongst the core challenges associated with regulatory forms of governance is the delegation of responsibilities for making and for monitoring and enforcing rules. Within the EU this delegation frequently has a double character, since member states have to implement rules set by the EU legislature and then themselves delegate the administrative implementation to agencies. The risks associated with such delegation are reasonably well understood and include the undue accretion of power in organisations which are quite remote from elected government, risks of missions being redfined, excessive zeal (imposing disproportionate costs on regulatees), capture (where agencies identify too strongly with the interests of those they are supposed to regulate), unfairness in the application of regimes which prioritise outcomes over processes, not to mention shirking and inefficiency. We argue in this chapter that in response to these challenges associated with regulatory governance in the EU, and not limited to the establishment of and delegation of power to agencies, there have emerged four sets of principles or meta-doctrines of regulatory accountability in the European Union. We have labelled these doctrines: Independent Regulation and Institutional Balance; Administrative Justice; Value for Money; and Better Regulation. As with the common law, the principles lying within these meta-doctrines are not codified, and the work of scholars, and in which we make a start, is to draw together emergent doctrines from a range of sources including primary and secondary legislation, administrative instruments such as guidance, decisions of oversight bodies such as the ombudsman offices and the courts. We start the chapter with some further elaboration of the concept of the four meta-doctrines, prior to concluding with an evaluation and indications of next steps for exploring and understanding meta-doctrines of accountability in the EU.
      387
  • Publication
    Single issue EU referendums: tying hands, domestic effects and the challenge of consentification
    (Taylor and Francis, 2023) ;
    Single-issue referendums–which give voters a say on specific European Union (EU) policies or general questions of European integration–were rarely employed before the 2000s, but they have since become commonplace. Examples include Greece’s 2015 referendum on negotiations with the EU and International Monetary Fund (IMF), Hungary’s 2016 referendum on the relocation of refugees between EU member states and the UK’s 2016 vote to leave the EU. This article asks why we are seeing more single-issue referendums in the EU. Surveying different theoretical perspectives on the conditions under which such votes occur, it considers single-issue referendums as being driven by (1) the search for strategic advantage in a two-level game, (2) domestic effects and (3) problems of consentification. Case studies of eight single-issue referendums show that domestic effects matter but offer limited evidence of hand tying. Most single-issue referendums, it finds, were called by governments wrestling with issues that could win legal approval but not political legitimacy. This instrument of direct democracy will remain a feature of EU politics, we contend, as member states wrestle with domestic effects and the challenge of (de)legitimating EU decisions through traditional means.
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  • Publication
    Two Journeys Intertwined: Lord Kerr and EU Law
    (Hart, 2021-12-02)
    The career of Lord Kerr happens to coincide with United Kingdom membership of the EU. This chapter reflects on the intersection of that career with EU Law, focusing on the cases Lord Kerr heard in the Supreme Court and in particular those EU Law cases where he gave the leading judgment. Lord Kerr heard about four cases a year with an EU Law dimension across a limited number of fields: more than half the cases concerned immigration and asylum; extradition (under the European Arrest Warrant) and employment law. He was adept at navigating the complex relationship between the two legal orders of EU and domestic law while giving principled and significant judgments on a range of issues including the status of the death penalty in both EU law and in the common law; the obligation on public authorities to adhere to the rule of law; and the existence of an EU law principle of non-discrimination on grounds of sexual orientation. As in other fields, when analysing and applying EU Law, Lord Kerr showed himself to be a progressive judge championing the rights of the individual in relation to the exercise of public authority.
      20