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’.
The protection of confidential communication between a lawyer and a client in the case law of the European Court of Human Rights