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Online Certificate in Judicial Review

Recent Developments in Human Rights and Judicial Review

Michael Farrell


The European Convention on Human Rights Act, 2003, which partially incorporated the European Convention into Irish law, was passed almost four years ago but so far its impact has been quite limited.  One obvious reason for this is that it has been held not to have retrospective effect (Dublin City Council v. Jeanette Fennell)1 [2005] IESC 33) so that it can only be relied upon in cases where the cause of action has arisen since 1st January 2004.  Given the pace at which cases are proceeding through the courts, it is only fairly recently that decisions have started to come through in cases where the 2003 Act is applicable.

To get an idea of the possible effect of the 2003 Act on Judicial Review cases in the future it is necessary to look at the effect of the very similar Human Rights Act, 1998 in the UK, which came into force in October 2000 and on which the 2003 Act here was largely modelled.

In a paper to the Law Society in October 2002, the Northern Ireland Lord Chief Justice, Sir Brian Kerr, said that in the first two years of operation of the Human Rights Act, the European Convention had been cited in 70% of all Judicial Review applications in the Northern Ireland courts2.  In the following year that figure had dropped back to 60%, but in January 2003, speaking at the European Court of Human Rights in Strasbourg, the Lord Chief Justice of England and Wales, Lord Woolf, said:

“...[W]hile previously a few experts in the United Kingdom were aware of the rich jurisprudence of this [Strasbourg] Court, now that jurisprudence is familiar to every judge and competent lawyer in the country.  In the cases that I hear it is rare for a decision from Strasbourg not to be cited at some stage of the hearing...”3

Lord Woolf was not referring specifically to Judicial Review cases but in practice JR appeals make up a large proportion of the workload of the House of Lords.

1 Dublin City Council v Jeanette Fennell [2005] IESC 33

2 Papers by Mr Justice (now Lord Chief Justice Kerr) to Law Society/Irish Human Rights Commission conferences in October 2002 and 2003

3 Judiciary of England and Wales: Lord Woolf, Lord Chief Justice of England and Wales, Speech on the occasion of the opening of the judicial year, European Court of Human Rights, Strasbourg, 23 January 2003; <www.judiciary.gov.uk>

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