Date01 January 2008
Mr Justice Nial Fennelly
Judge of the Supreme Court of Ireland
On 4th June 1963, I quaked in my boots on the way to King’s Inns to sit my
Bar Finals. The flags fluttered under a sparkling summer sun as always at
exam time; they were at half mast to mourn the passing, on the previous
day, of Pope John XXIII.
I sat papers in the solid traditional subjects of contract, tort, equity,
conveyancing, criminal law and constitutional law, but not, of course, in
European Law, International Law or Human Rights law. Administrative
Law and Family Law were in their infancy.
We were not yet in the European Community. General de Gaulle had, on
14th January that year, infamously vetoed for the first time Harold
Macmillan’s application to join. Almost coincidentally, but ironically, the
European Court of Justice on 5th February in the same year pronounced its
seismic judgment in Van Gend en Loos.1Thereafter, it was clear that the
Treaty had “e stablished a new legal order of in ternational law the
subjects of which comprise not only the Member States but also their
nationals …” Ten years later and a second de Gaulle veto notwithstanding,
Ireland voted by a majority of 82% to merge the sovereignty proclaimed in
Articles 5 and 6 of the Constitution in the larger sovereignty of that “new
legal order” of nations.
As Mr Justice Henchy said, writing extra-judicially in 1977,2it was as if,
the people of Ireland had adopted Community law as a second but
transcendent Constitution.’
The history of Ireland’s relationship with the European Convention
followed a similarly erratic course. Ireland was the first contracting state to
permit individual petition against it in the European Court of Human
Rights. Article 29, section 6 of the Constitution, as interpreted by the
Supreme Court in In Re O’Laighleis [1960] I.R. 93, placed what Maguire
C.J. described as an insuperable obstacle in the way of judicial recognition
of Convention rights in Irish domestic law. Ultimate power resided in the
legislature. Notably, the Norris decision of the European Court led to the
decriminalisation of homosexual acts, which the courts had held to be
beyond their power in Norris v Attorney General [1984] I.R.. Ultimately,
1Case C-26/62 N.V. Algemene Transport – En Ex peditie Ondermening Van Gend &
Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.
2‘The Irish Constitution and the EEC’ (1977) DULJ 20.
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