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Mr. Justice McKechnie was here dealing with two sets of proceedings.  One was a Judicial Review application commenced in 1997 in which he had given judgment against the applicant in 2002, following which Dr. Foy had appealed.  Before the appeal was due to be heard in the Supreme Court in November 2005, Dr Foy sought to amend her grounds of appeal to include an application for a declaration of incompatibility of the existing law with Article 8 of the European Convention.

The Supreme Court sent the case back to the High Court to deal with the ECHR point.  Around the same time Dr Foy also issued new proceedings using a new statutory appeal procedure provided for in the Civil Registration Act, 2004, and again seeking inter alia a declaration of incompatibility pursuant to the ECHR Act, 2003.

Giving judgment on 19th October 2007, Judge McKechnie found against Dr Foy in the reference from the Supreme Court on the basis that the ECHR Act, 2003 was not retrospective in its effect (following the Fennell decision referred to at the beginning of this paper) and so could not apply to the original proceedings commenced in 1997.

However, he found for Dr Foy in the second set of proceedings, which had been issued after the 2003 Act had come into effect.  Influenced by a series of decisions on this issue by the Strasbourg Court, Judge McKechnie held that the failure of Irish law to provide any mechanism for recognising Dr Foy’s new gender identity meant that it was incompatible with Article 8 and he granted the first declaration of incompatibility under the 2003 Act.

At the time of writing the written judgment had not yet become available but it does not appear that there was any significant difference in the way in which the judge dealt with the statutory appeal proceedings from how he would have approached the matter if it had been a Judicial Review.

Finally, to give an impression of the sort of cases (many of them Judicial Reviews) where the UK courts have applied the Human Rights Act and the European Convention and the sort of issues involved, attached is a list of cases where declarations of incompatibility have been made by the UK courts up to July 2007 and of the action taken as a result.  This does not, of course, include cases where the courts have overturned specific executive or administrative decisions as in breach of the duty of decision makers to act compatibly with the Convention, or where the courts have been able to re-interpret the law in light of Convention jurisprudence.  However, there is no reason to think that the spectrum of issues involved in such cases would be markedly different.

10th November 2007

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