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Judges, politics and the Irish Constitution$
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Laura Cahillane, James Gallen, and Tom Hickey

Print publication date: 2017

Print ISBN-13: 9781526114556

Published to Manchester Scholarship Online: September 2017

DOI: 10.7228/manchester/9781526114556.001.0001

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The jurisdiction of the European Court of Human Rights and the case of O’Keeffe v. Hickey

The jurisdiction of the European Court of Human Rights and the case of O’Keeffe v. Hickey

Chapter:
(p.94) 6 The jurisdiction of the European Court of Human Rights and the case of O’Keeffe v. Hickey
Source:
Judges, politics and the Irish Constitution
Author(s):

Justice Adrian Hardiman Hon. Mr

Publisher:
Manchester University Press
DOI:10.7228/manchester/9781526114556.003.0007

The chapter of Mr. Justice Adrian Hardiman positions the European Convention on Human Rights in the context of the Irish domestic legal system and highlights the political motivations behind the decision to give effect to the Convention in Irish law at a sub-constitutional and interpretive level. The chapter argues that the the principle of subsidiarity is under threat in the decision in O’Keeffe, where, in his view, the Strasbourg Court dramatically expanded its jurisdiction and encroached upon national sovereignty. Mr. Justice Hardiman is particularly concerned that the Strasbourg court entertained a claim that was not presented in the High Court or Supreme Court and that the judgment appeared to merge O’Keeffe’s claims under direct State responsibility and vicarious liability. He argues that this reflects a departure from prior case law for the ECtHR. Mr. Justice Hardiman’s second concern centres on the use by the court of language of ‘objective’, ‘core objective’ and ‘core grievance’, suggesting that use of these terms implies that, at the discretion of the ECtHR, the simple word ‘all’ may mean ‘some’ or even ‘at least one’.

Keywords:   ECHR, subsidiarity, jurisdiction

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