This chapter examines the engagement of the Irish Supreme Court with the European Convention on H... more This chapter examines the engagement of the Irish Supreme Court with the European Convention on Human Rights. It reviews all of the occasions on which decisions of the Supreme Court have been reviewed by the European Commission or Court of Human Rights, cases such as Lawless, Norris, Open Door, Keegan, Heaney, Murphy, Independent News, Bosphorus Airways, McFarlane and O’Keeffe. The argument is made that, like the UK Supreme Court, Ireland’s top court has not been as committed to adopting the ECHR’s standards as it might have been and that the Court is still not adapting its own judgment-writing to take proper account of the jurisprudence of the European Court of Human Rights. That Court has frequently highlighted the inordinate delays which plagued the Irish Supreme Court in the 1990s. More could be done to integrate the European Court’s thinking into the way the Supreme Court goes about developing Ireland’s human rights law.
This chapter provides relevant historical context by explaining how Southern Ireland broke away f... more This chapter provides relevant historical context by explaining how Southern Ireland broke away from the United Kingdom in 1922 and became a Dominion under the name of the Irish Free State. It describes how the court system developed before and after the partition of Ireland, focusing on the transition from the Dáil Éireann courts to the proposals in the report of the Judiciary Committee in 1923, which led to the Courts of Justice Act 1924. The nature of the proposed Supreme Court of Ireland is compared with that of Supreme Courts in other dominions at that time, with particular regard to the judicial power to subject legislation to constitutional review. Despite references to Canada in the Irish Free State’s Constitution, few lessons were drawn from the experience of Canada’s Supreme Court or any other top national court.
This chapter begins by considering the arms trial in the early 1970s and outlines the gist of the... more This chapter begins by considering the arms trial in the early 1970s and outlines the gist of the Sunningdale Agreement in 1973 before considering the challenge to that Agreement dealt with by the Supreme Court in the Boland case. There follows an examination of the Court’s views on the constitutional status of Northern Ireland in McGimpsey v Ireland, decided in the wake of the Anglo-Irish Agreement of 1985, and on the constitutionality of the Belfast (Good Friday) Agreement in the Riordan case. There is an analysis of Law Enforcement Commission’s report and of the Court’s views on resulting Criminal Law (Jurisdiction) Bill 1975. The focus next moves to the shifting views of the Supreme Court on when it is appropriate to extradite suspected terrorists to Northern Ireland. Cases concerning Dominic McGlinchey, Séamus Shannon, Robert Russell, Dermot Finucane and Owen Carron are examined, as is the state of extradition law today.
The Northern Ireland legal quarterly, Mar 12, 2020
I t is now over a decade since the Human Rights Act 1998 came into force in Northern Ireland, the... more I t is now over a decade since the Human Rights Act 1998 came into force in Northern Ireland, thereby effectively making European Convention rights (the ECHR) part of domestic law. During that time innumerable cases have come before the courts raising not only Convention rights but also human rights deriving from other sources, including the common law. This article presents a flavour of current judicial approaches to human rights arguments in Northern Ireland by surveying all relevant decisions of the courts of Northern Ireland during the 2009-10 legal year. 1 It aims to convey a sense of not just the variety of claims dealt with but also the depth of treatment to which they were subjected by the judges. Northern Ireland is clearly a jurisdiction where human rights jurisprudence is a very live topic, one which is constantly developing and which requires lawyers and commentators to be always on the alert. 2 The right to life The extent to which the right to life is protected by law in Northern Ireland was at issue in no fewer than six cases, including one decided by the Court of Appeal. Three involved troubles-related deaths, two required examination of the law on threats, and one concerned the law on abortion. Two of the troubles-related cases involved inquests. In Re McCaughey and Quinn's Application, the applicants challenged the rulings by the House of Lords in Re McKerr 3 that the Human Rights Act had no retrospective application and that the substantive and procedural aspects of Article 2 were not severable. They relied on the recent judgment of
. Democracy and the Judiciary (Hugh Corder ed., 1989) (analyzing the history of the South African... more . Democracy and the Judiciary (Hugh Corder ed., 1989) (analyzing the history of the South African judiciary). Const.]. 6. Republic of S. Afr. Interim Const., supra note 5, ch. VII, § 105(1). See section 178 of the Constitution of 1996, which increases the minimum membership to twentythree. The Commission is also charged with advising the national government on all matters relating to the judiciary and the administration of justice. Republic of S. Afr. Const. ch. VIII, § 178(5). 7. Republic of S. Afr. Interim Const., supra note 5, ch. VII, § 99(3)-( ). Vacancies were filled in the same way, depending on the category of judge replaced. Republic of S. Afr. Interim Const. ch. VII, § 99(5)-(7). 8. Republic of S. Afr. Const., supra note 5, ch. VIII, § 174(4).
This chapter sets out the aims of the book, which are to evaluate the performance of the Irish Su... more This chapter sets out the aims of the book, which are to evaluate the performance of the Irish Supreme Court through its 94 years of history to date and to assess what contribution it has made to Irish legal culture. It considers the difficulties in undertaking that task and surveys some of the evaluative literature which already exists on supreme courts in other common law countries such as the USA, Canada, Australia and the UK. It posits that the most important assessment criteria are clarity, fairness, efficiency and respect. The chapter then refers to existing literature on the Irish Supreme Court and explains what will be covered in subsequent chapters of the book.
This chapter examines the engagement of the Irish Supreme Court with the European Convention on H... more This chapter examines the engagement of the Irish Supreme Court with the European Convention on Human Rights. It reviews all of the occasions on which decisions of the Supreme Court have been reviewed by the European Commission or Court of Human Rights, cases such as Lawless, Norris, Open Door, Keegan, Heaney, Murphy, Independent News, Bosphorus Airways, McFarlane and O’Keeffe. The argument is made that, like the UK Supreme Court, Ireland’s top court has not been as committed to adopting the ECHR’s standards as it might have been and that the Court is still not adapting its own judgment-writing to take proper account of the jurisprudence of the European Court of Human Rights. That Court has frequently highlighted the inordinate delays which plagued the Irish Supreme Court in the 1990s. More could be done to integrate the European Court’s thinking into the way the Supreme Court goes about developing Ireland’s human rights law.
This chapter provides relevant historical context by explaining how Southern Ireland broke away f... more This chapter provides relevant historical context by explaining how Southern Ireland broke away from the United Kingdom in 1922 and became a Dominion under the name of the Irish Free State. It describes how the court system developed before and after the partition of Ireland, focusing on the transition from the Dáil Éireann courts to the proposals in the report of the Judiciary Committee in 1923, which led to the Courts of Justice Act 1924. The nature of the proposed Supreme Court of Ireland is compared with that of Supreme Courts in other dominions at that time, with particular regard to the judicial power to subject legislation to constitutional review. Despite references to Canada in the Irish Free State’s Constitution, few lessons were drawn from the experience of Canada’s Supreme Court or any other top national court.
This chapter begins by considering the arms trial in the early 1970s and outlines the gist of the... more This chapter begins by considering the arms trial in the early 1970s and outlines the gist of the Sunningdale Agreement in 1973 before considering the challenge to that Agreement dealt with by the Supreme Court in the Boland case. There follows an examination of the Court’s views on the constitutional status of Northern Ireland in McGimpsey v Ireland, decided in the wake of the Anglo-Irish Agreement of 1985, and on the constitutionality of the Belfast (Good Friday) Agreement in the Riordan case. There is an analysis of Law Enforcement Commission’s report and of the Court’s views on resulting Criminal Law (Jurisdiction) Bill 1975. The focus next moves to the shifting views of the Supreme Court on when it is appropriate to extradite suspected terrorists to Northern Ireland. Cases concerning Dominic McGlinchey, Séamus Shannon, Robert Russell, Dermot Finucane and Owen Carron are examined, as is the state of extradition law today.
The Northern Ireland legal quarterly, Mar 12, 2020
I t is now over a decade since the Human Rights Act 1998 came into force in Northern Ireland, the... more I t is now over a decade since the Human Rights Act 1998 came into force in Northern Ireland, thereby effectively making European Convention rights (the ECHR) part of domestic law. During that time innumerable cases have come before the courts raising not only Convention rights but also human rights deriving from other sources, including the common law. This article presents a flavour of current judicial approaches to human rights arguments in Northern Ireland by surveying all relevant decisions of the courts of Northern Ireland during the 2009-10 legal year. 1 It aims to convey a sense of not just the variety of claims dealt with but also the depth of treatment to which they were subjected by the judges. Northern Ireland is clearly a jurisdiction where human rights jurisprudence is a very live topic, one which is constantly developing and which requires lawyers and commentators to be always on the alert. 2 The right to life The extent to which the right to life is protected by law in Northern Ireland was at issue in no fewer than six cases, including one decided by the Court of Appeal. Three involved troubles-related deaths, two required examination of the law on threats, and one concerned the law on abortion. Two of the troubles-related cases involved inquests. In Re McCaughey and Quinn's Application, the applicants challenged the rulings by the House of Lords in Re McKerr 3 that the Human Rights Act had no retrospective application and that the substantive and procedural aspects of Article 2 were not severable. They relied on the recent judgment of
. Democracy and the Judiciary (Hugh Corder ed., 1989) (analyzing the history of the South African... more . Democracy and the Judiciary (Hugh Corder ed., 1989) (analyzing the history of the South African judiciary). Const.]. 6. Republic of S. Afr. Interim Const., supra note 5, ch. VII, § 105(1). See section 178 of the Constitution of 1996, which increases the minimum membership to twentythree. The Commission is also charged with advising the national government on all matters relating to the judiciary and the administration of justice. Republic of S. Afr. Const. ch. VIII, § 178(5). 7. Republic of S. Afr. Interim Const., supra note 5, ch. VII, § 99(3)-( ). Vacancies were filled in the same way, depending on the category of judge replaced. Republic of S. Afr. Interim Const. ch. VII, § 99(5)-(7). 8. Republic of S. Afr. Const., supra note 5, ch. VIII, § 174(4).
This chapter sets out the aims of the book, which are to evaluate the performance of the Irish Su... more This chapter sets out the aims of the book, which are to evaluate the performance of the Irish Supreme Court through its 94 years of history to date and to assess what contribution it has made to Irish legal culture. It considers the difficulties in undertaking that task and surveys some of the evaluative literature which already exists on supreme courts in other common law countries such as the USA, Canada, Australia and the UK. It posits that the most important assessment criteria are clarity, fairness, efficiency and respect. The chapter then refers to existing literature on the Irish Supreme Court and explains what will be covered in subsequent chapters of the book.
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