Papers by Conor Casey
The judiciary is not the only institution capable of assessing the compatibility of legislation w... more The judiciary is not the only institution capable of assessing the compatibility of legislation with constitutional or statutory-rights based commitments. In many legal systems, this process can also encompass the political branches playing an important role through engaging in pre-enactment review. This involves the political branches of government - the executive and parliament-assessing the compliance of proposed bills with constitutional or statutory commitments. Accounts in public law scholarship argue that pre-enactment review by both political branches promotes several valuable normative benefits, including enhancing government accountability by subjecting their decisions to constitutional or rights-based scrutiny internally through executive assessment, and then externally through parliamentary and public scrutiny. This in turn is said to encourage the political branches to be more rights-conscious in their approach to the law-making process and the public to be more aware o...
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The imperfect separation of powers in Westminster systems has produced a curious contradiction: l... more The imperfect separation of powers in Westminster systems has produced a curious contradiction: legislative supremacy in theory eclipsed by executive control in practice. This phenomenon can be termed executive dominance, and in extreme instances can reduce the legislature to something akin to a reactive rubber stamp, approving whatever the executive proposes with little to no autonomous power. This dominance sits uneasily with articulated constitutional principles which emphasize legislative predominance, but has largely been considered a matter of realpolitik, a function of executives having strong party discipline over a legislative majority. However, recent trends suggest that executive dominance may be a more resilient and entrenched phenomenon than was previously supposed. In several Westminster systems, the executive has retained remarkable control of the legislative process in spite of not having a legislative majority. Even minority governments have proven capable of stifli...
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Political constitutionalism understood in terms of autonomy of political judgement rather than al... more Political constitutionalism understood in terms of autonomy of political judgement rather than allocation of powers – Irish case studies as example – Judicial doctrines recognise political discretion concerning rights – However, legalism or legal constitutionalism arises within the sphere of political judgement itself – Legal constitutionalism restricts political autonomy epistemically as well as institutionally
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Law & Literature
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Irish Studies in International Affairs
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SSRN Electronic Journal
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SSRN Electronic Journal
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The Modern Law Review
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SSRN Electronic Journal
The Irish Attorney General's Office seemingly plays a major role in Irish politics in adv... more The Irish Attorney General's Office seemingly plays a major role in Irish politics in advising the government on the constitutionality of Bills and policies. With scant basis in the constitutional text, this advice appears to have become central to policymaking, with the executive regarding it as a near-binding determination of constitutional issues, and allowing policy to be halted by this advice. Yet the advice itself is almost never published, and is not open to public or political contestation or debate. In this paper, we attempt to map the role and influence of the Attorney General in Ireland based on the limited available information, and critically examine the office's independence, its apparent influence on policy, and the apparently belief of government that its advice is binding. We conclude that either the AG distorts policymaking, or that its advice is capable of misuse by government to justify its action or inaction, but that without full access to its advice we cannot tell which. We conclude by arguing that transparency in this process is essential so that we might know the true influence of the office, and so that parliamentarians and the people could engage in debate about this advice and contest it where appropriate.
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SSRN Electronic Journal
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SSRN Electronic Journal
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Irish Jurist, 2015
We consider whether the right to shelter can be secured through Irish law as it stands. The piece... more We consider whether the right to shelter can be secured through Irish law as it stands. The piece consists of an analytical exploration of the current guarantees provided for in the Irish Constitution and the European Convention on Human Rights and how they may be used to vindicate the right to shelter.
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Irish Jurist (Vol.53, Forthcoming)., 2015
There is evidently uncertainty in the Superior Courts concerning the interaction between the Immi... more There is evidently uncertainty in the Superior Courts concerning the interaction between the Immigration Act 2004 and the executive power of the State to operate and regulate residency permission schemes for non-Irish nationals. This article will explore the Superior Courts treatment of S.4 and S.5 of the 2004 Act, contrasting the approach of the High Court with the Supreme Court. While the Supreme Court has not yet definitively ruled on the interaction between the s.4 and s.5 of the Immigration Act 2004 and Ministerial discretion, there have been hints in both Bode v Minister for Justice and Sulaimon v Minister for Justice that these sections do not delimit the extent of said discretion. It will be demonstrated below that these cases suggest that the Supreme Court has adopted the premise that the Minister for Justice has inherent power to consider and determine an application for residency, independent of any statutory scheme. In contrast it appears that the High Court, typified in the recent case of Hussein v Minister for Justice , has taken the view that the arrangements governing entitlement to remain within the State derive from ss.4 and 5 of the Immigration Ac 2004 and thus limit the Ministers discretion to refuse residency permission to non-nationals.
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Trinity College Law Review, 2015
This article considers and evaluates the Strong and Weak Indeterminacy Theses. It argues that the... more This article considers and evaluates the Strong and Weak Indeterminacy Theses. It argues that the Strong Thesis is overstated but that the Weak Thesis highlights the true significance of Judicial politico-moral disposition in the adjudication of contentious cases.
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Irish Law Times, May 2014
Case Note examining the implications of the 2012 Supreme Court decision in DPP v Damache.
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Recent Articles by Conor Casey
International Journal of Constitution Law (ICON) (forthcoming), 2019
Political constitutionalism is a major area of enquiry in contemporary constitutional discourse. ... more Political constitutionalism is a major area of enquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights-compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions – Canada, New Zealand and the UK – we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon ‘shadow constitutional review’, and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.
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Recent Papers by Conor Casey
International Journal of Constitutional Law (ICON), 2022
The growth in the power of the executive branch of government has been accompanied by a related g... more The growth in the power of the executive branch of government has been accompanied by a related growth – heretofore unexplored in the literature on comparative constitutional law – of the role and importance of executive legal advisors. These influential but often secretive advisors can be the first and sometimes only group to review the actions of the executive, or legislative proposals before enactment, for compliance with the constitution. In this article, we compare this practice in four similar but somewhat distinct jurisdictions – the UK, Canada, the US and Ireland – to assess its impact on constitutionalism and the executive power. We conclude that the practice of constitutional review by executive lawyers is highly variable, changing between places and over time along four key axes that can either empower or constrain the executive to varying degrees. It can restrain excutive action by holding it within constitutional boundaries; it can bolster the executive power by giving legalistic credibility to its actions while providing little restraint in practice; or it can create policy distortion by overly tightly binding executive and legislative action. Constitutional advice from executive legal advisors, then, does not operate as an exogenous constraint on executive power, but can be structured and manipulated by the executive to have various different effects. As such, we argue that this institution requires much more attention from both comparative constitutional lawyers and constitutional designers to map its effects on the constitutional order and to see what structures, processes and cultural factors might shape it. Finally, we argue for increased transparency in the provision of executive constitutional advice, as without this, even understanding its effects is extremely difficult.
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Dublin University Law Journal, 2019
The Irish Attorney General's Office seemingly plays a major role in Irish politics in advising th... more The Irish Attorney General's Office seemingly plays a major role in Irish politics in advising the government on the constitutionality of Bills and policies. With scant basis in the constitutional text, this advice appears to have become central to policymaking, with the executive regarding it as a near-binding determination of constitutional issues, and allowing policy to be halted by this advice. Yet the advice itself is almost never published, and is not open to public or political contestation or debate. In this paper, we attempt to map the role and influence of the Attorney General in Ireland based on the limited available information, and critically examine the office's independence, its apparent influence on policy, and the apparently belief of government that its advice is binding. We conclude that either the AG distorts policymaking, or that its advice is capable of misuse by government to justify its action or inaction, but that without full access to its advice we cannot tell which. We conclude by arguing that transparency in this process is essential so that we might know the true influence of the office, and so that parliamentarians and the people could engage in debate about this advice and contest it where appropriate.
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Public Law, 2021
The imperfect separation of powers in Westminster systems has produced a curious contradiction: l... more The imperfect separation of powers in Westminster systems has produced a curious contradiction: legislative supremacy in theory eclipsed by executive control in practice. This phenomenon can be termed executive dominance, and in extreme instances can reduce the legislature to something akin to a reactive rubber stamp, approving whatever the executive proposes with little to no autonomous power. This dominance sits uneasily with articulated constitutional principles which emphasize legislative predominance, but has largely been considered a matter of realpolitik, a function of executives having strong party discipline over a legislative majority. However, recent trends suggest that executive dominance may be a more resilient and entrenched phenomenon than was previously supposed. In several Westminster systems, the executive has retained remarkable control of the legislative process in spite of not having a legislative majority. Even minority governments have proven capable of stifling the legislature in the performance of its functions.
In this article, we use Ireland’s recent experience of minority government as a case study. Several longstanding elements of parliamentary and government process were used by the executive to create a form of legislative veto over private members legislation and leave it with substantial control over the legislative process. Essentially, executive dominance remained, in spite of minority government and other factors which might have been expected to reduce it. We argue this experience shows that executive dominance is resilient because it is a function of political and constitutional culture just as much as formal rules. This culture is a set of beliefs and assumptions about politics and its operation which undergirds and shapes our understanding of the rules and how constitutional actors ought to function. Executive dominance appears to be cultural, an assumption that underlies parliamentary democracy and its institutions and animates the practices and interpretations of rules that entrench this phenomenon. This serves an important lesson to anyone who would seek to reform parliamentary practices to empower the legislature or challenge executive dominance.
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Papers by Conor Casey
Recent Articles by Conor Casey
Recent Papers by Conor Casey
In this article, we use Ireland’s recent experience of minority government as a case study. Several longstanding elements of parliamentary and government process were used by the executive to create a form of legislative veto over private members legislation and leave it with substantial control over the legislative process. Essentially, executive dominance remained, in spite of minority government and other factors which might have been expected to reduce it. We argue this experience shows that executive dominance is resilient because it is a function of political and constitutional culture just as much as formal rules. This culture is a set of beliefs and assumptions about politics and its operation which undergirds and shapes our understanding of the rules and how constitutional actors ought to function. Executive dominance appears to be cultural, an assumption that underlies parliamentary democracy and its institutions and animates the practices and interpretations of rules that entrench this phenomenon. This serves an important lesson to anyone who would seek to reform parliamentary practices to empower the legislature or challenge executive dominance.
In this article, we use Ireland’s recent experience of minority government as a case study. Several longstanding elements of parliamentary and government process were used by the executive to create a form of legislative veto over private members legislation and leave it with substantial control over the legislative process. Essentially, executive dominance remained, in spite of minority government and other factors which might have been expected to reduce it. We argue this experience shows that executive dominance is resilient because it is a function of political and constitutional culture just as much as formal rules. This culture is a set of beliefs and assumptions about politics and its operation which undergirds and shapes our understanding of the rules and how constitutional actors ought to function. Executive dominance appears to be cultural, an assumption that underlies parliamentary democracy and its institutions and animates the practices and interpretations of rules that entrench this phenomenon. This serves an important lesson to anyone who would seek to reform parliamentary practices to empower the legislature or challenge executive dominance.