A Floor or a Ceiling? Irish and UK Approaches to Strasbourg Jurisprudence

Abstract

This paper explores the similar obligation on Irish and UK courts under their respective legislative regimes to ‘take into account’ the jurisprudence of the ECtHR when interpreting what the Convention obligates. Irish Courts were keen to follow the UK courts’ pronouncements that domestic courts should do ‘no more but certainly no less’ than what the ECtHR has decided; however, UK Courts have in recent cases indicated a shift away from this rigid approach to a more flexible attitude towards Strasbourg jurisprudence and a resurgence of common law rights. This paper shall argue that Ireland should follow suit and adopt a form of judicial interpretation of rights that creates a more synergistic relation between the Constitution and the ECHR.