Judicial Diversity in Ireland

Dr. Laura Cahillane

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Judicial diversity is not a subject which is much discussed in Ireland. Despite the fact that our judiciary is still a relatively homogenous group with figures on female judges only recently improving, it seems neither the judges, nor the other two branches of government, see this as an issue which needs to be addressed. This is also in spite of the fact that our current process for appointing judges does not include any incentive or requirement to consider diversity and the recent trend which has seen the appointment of more women to the bench could just as easily be reversed by a future regime. Furthermore, while there has been some improvement in terms of gender balance, it seems there has been no consideration of diversity more generally in judicial appointments. In this context, this article examines whether diversity is an issue which needs to be considered in relation to judicial appointments in Ireland. First, the current profile of the Irish judiciary is illustrated. Then, in order to determine if and why diversity is necessary, the various rationales which have been put forward in favour of judicial diversity are analysed. Finally, the argument in favour of examining this issue in further detail in Ireland is put forward.

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“Cultural Vandalism akin to Ripping a Knife through a Rembrandt”?: A Critical Assessment of the Protections afforded to Irish Cultural Rights under Ireland’s Developing Heritage Laws

Dr. Thomas L. Muinzer

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In March 2012 Tralee Circuit Criminal Court, Ireland, indicated that it was seeking to benchmark an appropriate level of cultural heritage protection by fining a private citizen substantially for intentionally destroying a protected national monument. Against this backdrop, this article critically evaluates the contemporary evolution of Irish cultural heritage protections, focusing most particularly on two major case studies, the nationally high-profile motorway controversies that arose at Tara and Carrickmines. The analysis demonstrates that, while heritage legislation was strengthened in Ireland in the wake of a controversial development project at Wood Quay, Dublin, these protections have since been rolled back significantly. Pertinent aspects of Ireland’s legal position in the E.U. and the impact on Northern Ireland of damage to Irish heritage are also considered. In addition to exposing a gradual weakening of Ireland’s national heritage legislation, the findings throw into relief a disparity between the robust protective benchmark that has been crystallised with regard to a private citizen in 2012, and the ways in which public actors have utilised their space under national heritage law in a manner resulting in the irreparable destruction of precious elements of major national heritage landscapes.

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The Contractual Certainty of Commercial Agreements to Mediate in Ireland

Dr. Ronán Feehily

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Dispute resolution clauses have evolved over time becoming more complex and responding to judicial direction with court decisions resulting in more careful and detailed drafting. When investigating the enforceability of mediation clauses where one party refuses to comply, it is likely that the courts will determine their enforceability under general contractual principles as there is currently no legislative basis for enforcing such clauses in Ireland. While the evolution of jurisprudence regarding the enforcement of agreements to mediate would seem to be well established and largely understood by the judiciary in many jurisdictions, recent jurisprudence from England suggests that courts can still fail to understand how such agreements operate and there are instances when such agreements are not as certain as parties and advisors would like. Legal advisors must remain mindful of the organic nature of agreements to mediate and the need to revise the drafting of such agreements as new jurisprudence emerges. The article analyses issues such as the survival of a mediation clause on the termination of the agreement in which it is contained, the distinction between agreements to mediate and agreements to agree or negotiate, the importance of the certainty of the procedure for the mediation, the relationship between certainty and good faith and the requirement of completeness. The article proceeds to discuss the critical importance that such clauses are presented as conditions precedent to litigation and do not attempt to oust the jurisdiction of the courts, under Article 40.3 of the Irish Constitution and Article 6 of the European Convention on Human Rights. Remedies for breaching mediation clauses are discussed and recommendations offered as to how parties can enhance contractual certainty. The piece concludes with a legal and regulatory analysis that points to an emerging trend towards obligating lawyers to advise disputing clients on the mediation option.

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Surrogacy, Equal Status and Social Welfare Benefits

Mel Cousins

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This case note discusses the recent High Court decision concerning a claim under the Equal Status Acts 2000-2012 arguing that the failure of the Department of Social Protection to provide a payment during surrogacy leave – equivalent to that provided during maternity and/or adoption leave – is in breach of the Acts. The High Court rejected the case on the basis that it was not open to a court to make a finding of unlawfulness in the Social Welfare Acts 2005-2015 on the basis of the policy of another Act (in this case the Equal Status Acts). Although the Court arrived at the correct outcome, the reasoning adopted for doing so is questionable in some respects. The note discusses the issues raised in the case and how they might have been addressed.

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