The analytical approach of the European Court of Human Rights in surveillance cases—the implications, justifications, and future of the Court’s reasoning, with a focus on the legislative impact in Ireland

A notable feature of the surveillance case law of the European Court of Human Rights has been the tendency of the Court to focus on the “in accordance with the law” aspect of the Article 8 ECHR inquiry. This focus has been the subject of some criticism, but the impact of this approach on the manner in which domestic surveillance legislation has been formulated in the Party States has received little scholarly attention. This thesis addresses that gap in the literature through its consideration of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 and the Criminal Justice (Surveillance) Act, 2009. While both Acts provide several of the safeguards endorsed by the European Court of Human Rights, this thesis finds that they suffer from a number of crucial weaknesses that undermine the protection of privacy. This thesis demonstrates how the focus of the European Court of Human Rights on the “in accordance with the law” test has resulted in some positive legislative change. Notwithstanding this fact, it is maintained that the legality approach has gained prominence at the expense of a full consideration of the “necessary in a democratic society” inquiry. This has resulted in superficial legislative responses at the domestic level, including from the Irish government. Notably, through the examination of a number of more recent cases, this project discerns a significant alteration in the interpretive approach adopted by the European Court of Human Rights regarding the application of the necessity test. The implications of this development are considered and the outlook for Irish surveillance legislation is assessed.

Victims' rights in Ireland: influences, illusions and impacts

Following international trends victims of crime in Ireland have increasingly become a source of political, policy and to a lesser extent academic concern. Although it is assumed that the Irish victims’ rights movement is having a profound impact on the criminal justice system there are very few studies addressing this assumption or the genesis of the Irish movement. At the time a victims’ rights movement was established in Ireland there were movements already established in the U.S. and Britain. To determine which model Ireland followed, if any, in establishing its movement a comparative analysis of the emergence of the victims’ rights movements in these three common law jurisdictions was undertaken. This research examines possible victim policy transfer to test the transfer route perception that the victims’ movement began in the U.S., was transferred into Britain and then onto Ireland. At the same time that the victims’ rights movements were emerging in the U.S., Britain and Ireland, and asserting pressure on their national governments for beneficial changes for victims of crime, international organisations such as the U.N. and Council of Europe were being pressured by victims’ rights groups into introducing victim centered instruments of guidance and best practice for member states. Eventually the E.U. became involved and enacted a binding instrument in 2001. These victim centered instruments provide legal and service provision rights to Irish victims of crime, but they do not generate much academic interest. This research, in addition to providing a detailed account of the victim centered instruments, analyses the jurisprudence of the European Court of Human Rights, and identifies and analyses the primary victim centered statutory modifications and case law in Ireland over the past three decades. Lastly, the current law and practices in Ireland are evaluated against Ireland’s obligations under international and E.U. law.

End-of-life care: identifying an appropriate legal framework for specialist palliative care in Ireland

This thesis argues that the legal framework in Ireland for specialist palliative care is inadequate and consequently a more appropriate legal framework must be identified. This research is guided by three central research questions. The first central research question examines the legitimacy of the distinction between specialist palliative care and euthanasia. The second central research question asks what legal framework currently exists in Ireland for specialist palliative care. The third central research question examines an alternative legal framework for specialist palliative. This thesis is composed of seven chapters. The first Chapter is an introduction to the thesis and defines the terminology and the central research questions. Chapter Two explores the development and practice of palliative care in Ireland. Chapter Three examines the distinction in criminal law between specialist palliative care practices and euthanasia. Chapter Four examines the human rights framework for specialist palliative care. Chapter Five critiques the regulatory framework in Ireland for specialist palliative care. Having gained a thorough understanding of palliative care and the related legal framework, this thesis then engages in comparative analysis of the Netherlands which is used as a source of ideas for reform in Ireland. Chapter Seven is the concluding chapter and, in it, the main findings of this thesis are summarised. The main findings being that: the distinction between specialist palliative care and euthanasia is not sufficiently supported by justifications such as a double effect or the acts and omissions distinction, there is no clear decision-making framework in Ireland for specialist palliative care, and the current legal framework lacks clarity and does not promote consistency between providers of specialist palliative care. This Chapter also proposes that detailed professional standards and guidelines are likely to be the most appropriate way to effect individual and institutional change in the provision of specialist palliative care.

Genteel revolutionaries: the lives of Anna and Thomas Haslam

The lives of Thomas and Anna Haslam were dedicated to the attainment of women's equality. They were feminists before the word was coined. In an era when respectable women were not supposed to know of the existence of prostitutes, Anna became empowered to do the unthinkable, not only to speak in public but to discuss openly matters sexual and to attack the double standard of sexuality which was enshrined in the official treatment of prostitutes. Their life-long commitment to the cause of women's suffrage never faltered, despite the repeated discouragement of the fate of bills defeated in the House of Commons. The Haslams represented an Ireland which did not survive them. While they were dedicated to the union with Westminster, they worked happily with those who applied themselves to its destruction. Although in many ways they exemplified the virtues of their Quaker backgrounds, they did not subscribe to any organised religion. Despite living in straitened circumstances, they were part of an urban intellectual elite and participated in the social and cultural life of Dublin for over fifty years. It is tempting to speculate how the Haslams would have fared in post independence Ireland. Hanna Sheehy Skeffington who had impeccable nationalist credentials, was effectively marginalised. It is likely that they would have protested against discriminatory legislation in their usual law abiding manner but, in a country which quickly developed an overwhelmingly Roman Catholic ethos, would they have had a voice or a constituency? Ironically, Thomas's teaching on chastity would have found favour with the hierarchy; his message was disseminated in a simple and more pious manner in numerous Catholic Truth Society pamphlets. The Protestant minority never sought to subvert the institutions of the state, was careful not to criticise and kept its collective head down. Dáil Éireann was not bombarded with petitions for the restoration of divorce facilities or the unbanning of birth control. Those who sought such amenities obtained them quietly 'in another jurisdiction.' Fifty years were to pass before the condom wielding 'comely maidens' erupted on to the front pages of the Sunday papers. They were, one imagines, the spiritual descendants of the militant rather than the constitutional suffrage movement. "Once and for all we need to commit ourselves to the concept that women's rights are not factional or sectional privileges, bestowed on the few at the whim of the many. They are human rights. In a society in which the rights and potential of women are constrained no man can be truly free." These words spoken by Mary Robinson as President of Ireland are an echo of the principles to which the Haslams dedicated their lives and are, perhaps, a tribute to their efforts.

Reforming the legal framework for clinical trials with neonates in Ireland: a children’s rights approach

This thesis assesses the current regulatory framework regarding clinical trials with neonates in Ireland from a children’s rights perspective, as derived from the UN Convention on the Rights of the Child 1989 (UN CRC) and its supporting instruments. The focus on neonates in the thesis is due to the particular need for clinical research with this group of children, their dependency on others for their protection and the lack of attention which has been given to them in the regulatory framework. The importance of children’s rights in this area is linked to the role of human rights in the regulation of clinical research in general. A rights-based approach is of great practical relevance in reforming law, policy and practice. For example, the CRC contains a set of commonly agreed legal benchmarks which can be used to assess the current framework and shape recommendations for reform. In this way, it provides a set of binding norms under international law, which must be complied with by states and state actors in all law, policy and practice affecting children. However, the contribution which a children’s rights approach could make to the regulation of research with children has not, to date, been explored in detail. This thesis aims to address this gap by developing a set of children’s rights-based benchmarks, which are used to assess the Irish regulatory framework for clinical trials with neonates and to develop recommendations for reform. The purpose of the analysis and recommendations is to assess Ireland’s compliance with international children’s rights law in the area and to analyse the potential of children’s rights to effectively address inadequacies in the Irish framework. The recommendations ultimately aim to develop a framework which will enhance the protection of neonates’ rights in this important area of children’s lives.

The intra-Traveller debate on ‘Traveller ethnicity’ in the Republic of Ireland. A critical discourse analysis

This dissertation assesses from an under-explored angle the enduring contention over Travellers’ ethnic recognition in the Republic of Ireland, particularly over the last decade. The novelty of this study concerns not only its specific focus on and engagement with the debate on ‘Traveller ethnicity’ among Traveller activists. It also pertains to the examination of Travellers’ arguments for and against ethnicity in light of critical theorisations as well as insights from identity politics. Furthermore, the adoption of a Critical Discourse Analytical framework offers new perspectives to this controversy and its potential implications. Finally, this thesis’ relevance extends beyond the contention on ‘Traveller ethnicity’ in itself. It also draws attention to the complex dynamics of colonisation and appropriation between the global and the local. Particularly, it points to the interplay between international human rights discourses and the local ones, formulated by NGOs struggling for equality. In this way it sheds light on more general issues such as the dialectical potential of human rights discourses: the benefits and pitfalls of framing recognition claims in the legalistic terms of human rights. In this study it is argued that the contention on ‘Traveller ethnicity’ defies a simplistic polarisation between Irish Travellers and the Irish State since it has been simultaneously played out within the Travelling community. Specifically, this study explores how ‘Traveller ethnicity’ has been introduced, embraced, promoted and contested within Traveller politics to the point of becoming a hotly debated and divisive issue among Traveller activists and at the heart of the community itself. Putting Traveller activists centre-stage, their discourses for and against ‘Traveller ethnicity’ are examined and assessed against one another and their potential implications for Traveller politics, policies and identities are pointed out. Contending discourses are historically contextualised as the product of specific structural, material and discursive configurations of power and socio-economic relations within Irish society. Discourses for and against ‘Traveller ethnicity’ are assessed as being significant beyond the representational level. They are regarded as contributing to dialectically constitute Travellers’ ways of being, representing and acting. Furthermore these discourses are considered as sites and means of power struggles, whose stakes are not only words, but relate to issues of power and leadership within the Travelling community; adjudications over material resources; the adoption of certain policy approaches over others; and, finally, the consolidation of certain subject positions over others for Travellers to draw upon and relate to mainstream society. This study highlights an ongoing ideological struggle for the naturalisation of ‘Traveller ethnicity’ as a self-evident ‘fact’, which involves no active choice by Travellers themselves. Overall, ‘Traveller ethnicity’ appears to constitute an enduring source of dilemmas for the Travelling community. These revolve around the contradictory potential of ethnicity claims-making —both its perils and advantages— and its status as a potent political strategic resource that can both challenge and reinforce existing power relations, policies and identities.

Politics, Power, PISA: a genealogy of mathematics education policy at second level in Ireland at the beginning of the 21st century

This thesis traces a genealogy of the discourse of mathematics education reform in Ireland at the beginning of the twenty first century at a time when the hegemonic political discourse is that of neoliberalism. It draws on the work of Michel Foucault to identify the network of power relations involved in the development of a single case of curriculum reform – in this case Project Maths. It identifies the construction of an apparatus within the fields of politics, economics and education, the elements of which include institutions like the OECD and the Government, the bureaucracy, expert groups and special interest groups, the media, the school, the State, state assessment and international assessment. Five major themes in educational reform emerge from the analysis: the arrival of neoliberal governance in Ireland; the triumph of human capital theory as the hegemonic educational philosophy here; the dominant role of OECD/PISA and its values in the mathematics education discourse in Ireland; the fetishisation of western scientific knowledge and knowledge as commodity; and the formation of a new kind of subjectivity, namely the subjectivity of the young person as a form of human-capital-to-be. In particular, it provides a critical analysis of the influence of OECD/PISA on the development of mathematics education policy here – especially on Project Maths curriculum, assessment and pedagogy. It unpacks the arguments in favour of curriculum change and lays bare their ideological foundations. This discourse contextualises educational change as occurring within a rapidly changing economic environment where the concept of the State’s economic aspirations and developments in science, technology and communications are reshaping both the focus of business and the demands being put on education. Within this discourse, education is to be repurposed and its consequences measured against the paradigm of the Knowledge Economy – usually characterised as the inevitable or necessary future of a carefully defined present.