Foreword

• Date: 01 January 2008

Foreword

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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