Procedural Law (Books and Journals)

• Irish Judicial Studies Journal

• Irish Judicial Studies Journal

This article seeks to reassess the TD and Sinnott cases in Irish constitutional law. It explores the context of these cases, and why they are regarded as important and closely linked in Irish constitutional discourse. It then analyses their reasoning to consider whether they withstand scrutiny after two decades. It concludes that the judgments painted with too broad a brush, reaching some...

• Irish Judicial Studies Journal

The case of TD v Minister for Education is a great microcosmic example of the varying philosophies of the separation of powers and the role of the judge under the Constitution and for many years it set a very high standard for the review of executive power, but perhaps the wind is changing on these issues. This article will briefly consider the various perspectives given by the judges in the TD...

• Irish Judicial Studies Journal

This article argues that TD v Minister for Education was about something more specific than has been supposed in the academic literature. Rather than being about the justiciability of socio-economic rights in principle, or the separation of powers broadly, it was an appeal about whether a High Court judge had the jurisdiction to hand down the particular order. The order contained great policy...

• Irish Judicial Studies Journal

For all its influence and renown, TD v Minister for Education is arguably an outlier among the many decisions of the Irish courts on the topic of rights enforcement against the executive. This paper illustrates this by reference to case law before TD, and discusses recent reaffirmation of this by the Supreme Court. It then considers various possible explanations for this outlier status, and...

• Irish Judicial Studies Journal

This paper suggests that the true influence of the TD case is seen not in its formal legal significance but in its less obvious impact on Irish constitutional culture. Drawing on Tribe’s notion of landmark cases curving constitutional space, it suggests TD is a form of constitutional dark matter, warping the fabric constitutional law invisibly by entrenching a highly cautious judicial culture and

• Irish Judicial Studies Journal

Given that litigation is the last resort for those in need of education, and that there are ongoing challenges for those with disabilities in particular accessing appropriate education, there is a surprising paucity of contemporary cases seeking to enforce the right to education under the Irish Constitution. This article considers the causes of this, and the underexplored possibility that the TD...

• Irish Judicial Studies Journal

This article considers the impact of TD on housing rights in Ireland. While Ireland has signed up to multiple housing rights protections in the international human rights context, it has failed to implement them. TD ensures no constitutional intervention from the courts in this context. Despite generous Irish State funded social housing over the past century, access to shelter or housing is not...

• Irish Judicial Studies Journal

This article considers the underexplored nexus between the debates about housing rights and the TD debate, and the question of the appropriateness of judicial intervention in the social and economic arena. It contends that the property rights decisions that make responses to the housing crisis problematic are in fact inconsistent with the division of labour between courts and elected branches of...

• Irish Judicial Studies Journal

This article considers TD v Minister for Education in contrast to the development of social rights protection in South Africa. It finds that South Africa developed powers similar to those exercised by Kelly J in TD incrementally. TD was a hard case, causing the possibility of incrementally developing social rights protection to be foreclosed upon. Had mandatory orders for other rights been...

• Irish Judicial Studies Journal

This paper discusses the TD case, and its core holding about the justiciability of social rights, in comparative perspective. Canvassing the practice of courts in the US, Canada, Australia, New Zealand and South Africa, and the UK Supreme Court and the courts of Northern Ireland, it concludes that, despite the controversy surrounding the TD case’s outcome, it is very much in line with Ireland’s...

• Irish Judicial Studies Journal

• Irish Judicial Studies Journal

• Irish Judicial Studies Journal

This article analyses the various phases of development of the European Convention on Human Rights Act 2003 and considers both what has been achieved as well as a potential new direction in Irish human rights jurisprudence.

• Irish Judicial Studies Journal

This article provides an insight into one aspect of the Irish juvenile justice system, namely the developmental nature of children and young persons who appear before the courts. In doing so it observes current judicial practice, both from the perspective of judges, and through the lens of young people’s probation officers (‘YPPO’), child offenders and child victims. It acknowledges the...

• Irish Judicial Studies Journal

This article explores the range of issues judges may find themselves dealing with following the enactment of the Data Protection Act 2018 (itself implementing Regulation (EU) 2016/679 - The General Data Protection Regulation). These issues include a new cause of civil action, changes to civil procedure, the role the Circuit Court plays in hearing appeals of decisions of the Data Protection...

• Irish Judicial Studies Journal

This paper outlines international obligations and domestic safeguards that shape the treatment of suspects with intellectual disabilities in Ireland. In recognising that the meaningful operationalisation of these safeguards, and, by extension, the realisation of Ireland’s international human rights obligations, is often contingent upon securing a correct, and early, identification of a suspect’s...

• Irish Judicial Studies Journal

With the arrival of Spring 2022, war in Europe has again erupted, millions have been displaced, thousands have perished and the President of the United States expresses the worry that, with a false move, the use of nuclear weapons may be engaged to usher in World War III; fears that tortured President Kennedy in the Fall of 1962. Some say that history does not illuminate or, at best, the light...

• Irish Judicial Studies Journal

• Irish Judicial Studies Journal

• Irish Judicial Studies Journal

This paper examines the international context for the provisions on judicial conduct in the Judicial Council Act 2019. In doing so, reference is made to the Bangalore Principles of Judicial Conduct. The paper provides the background, rationale, and main aims of the Bangalore Principles. It discusses the six Bangalore Principles in the Judicial Council Act 2019 and highlights how the six Bangalore

• Irish Judicial Studies Journal

This article draws on Canadian practice to consider how judges can develop the skills necessary to become effective communicators in the courtroom. The judicial skills model practised in the National Judicial Skills Institute in Canada is based on the idea that in teaching a skill, it is necessary to provide some theory on the skill, then model the skill, have the learners practise the skill and...

• Irish Judicial Studies Journal

The Judicial Council is tasked with promoting and maintaining high standards of judicial conduct. The Judicial Council Act 2019 identifies judicial impartiality as a principle of judicial conduct that Irish judges are required to uphold and exemplify. Despite its ubiquity, judicial impartiality is perhaps underexplained and under-examined. This article considers the nature and scope of judicial...

• Irish Judicial Studies Journal

This article examines the statutory definition of judicial misconduct in the Judicial Council Act 2019 in detail. It draws on examples of judicial misconduct in other jurisdictions, such as Australia and England & Wales, to shed light on the meaning of acknowledged standards of judicial conduct in an Irish context. It then explores what is meant by bringing the administration of justice into...

• Irish Judicial Studies Journal

The Judicial Council Act 2019 contains a process for statutory informal resolution of complaints against judges. This article surveys a number of disciplinary systems in common law countries and draws comparison with the 2019 Act. The Act introduces an informal disciplinary process that effectively operates as a form of ‘mediation’, as it depends on the consent of the complainant and judge...

• Irish Judicial Studies Journal

In formal terms, the regulation of judicial conduct in Ireland has been limited to a single formal procedure for removal of judges set down in the Constitution. However, the absence of formal rules and procedures has not left the regulatory space wholly empty. This article investigates the nature of the regulatory space with respect to judicial conduct to ask how the introduction of new actors,...

• Irish Judicial Studies Journal

• Irish Judicial Studies Journal

This article explores what changes might be possible to better accommodate victims within criminal trials. While the transplantation of foreign victim-oriented procedures is often posited, this requires a wider understanding of their intricacies. What may be possible? We here consider the advance preparation of victims by counsel, greater control of cross-examination at trial, ticketing of...

• Irish Judicial Studies Journal

Although the Supreme Court rejected the claim that the Irish Constitution protects an unenumerated right to a healthy environment in Friends of the Irish Environment v The Government of Ireland, it clearly left the door open to future environmental (rights) litigation based on the Constitution. This article thus explores how the Constitution might be used in future to advance arguments that the...

• Irish Judicial Studies Journal

This article looks at the process of judgment writing from the perspective of a recently appointed Judge. It considers the objective criteria by reference to which judgments are selected for formal reporting in the law reports and the reasons why some judgments, which ostensibly meet those criteria, are not reported. It then examines the practical steps involved in the preparation of a written...