The Honourable Mr. Justice Frank Clarke was the 12th Chief Justice of Ireland from July 2017 to October 2021. He was born in 1951 and had a successful career as a barrister practising mainly in public and commercial law. He was the chair of the Bar Council of Ireland between 1993 and 1995. He was appointed to be a judge at the High Court in 2004 and became a member of the Supreme Court in 2012. After his retirement from the Supreme Court, he continued to work as a barrister. He is married and a father of two children. He has been involved in key cases throughout his career, both as a barrister and as a judge.
We discussed the differences between the common law and continental legal thinking, environmental justice issues (in Part I) and Ireland’s constitutional identity (in Part II).
Nearly a third of the world’s population lives under common law, but in Europe, the proportion is much lower. What are the reasons for this outside of legal history and organic legal development?
Well, I think legal history is probably the main reason why things are that way. Ireland was part of the United Kingdom for seven hundred years, so it was the first export of the common law. The US was also the same. I think it is very hard to change the fundamentals of a legal system unless there is a major revolution which totally displaces the previous order. Therefore, while people may adjust it or evolve it, there are different continental traditions, it needs to be recognized as well. Perhaps we, in the common law, think about all as one.
I remember a very interesting discussion I had with the president of the Polish Supreme Administrative Court a number of years ago. He pointed out that when Poland came to be a new state in 1919 after the Great War, it had, from an administrative law point of view, three different traditions. The southern part of Poland had been part of the Austro-Hungarian Empire, and had its sort of model of administrative law. The Western part had been part of Germany and it also had a different system, and the Eastern part, as being part of Russia, had a very French-oriented system. That specific example shows that the reason was mainly historical. The physical state of Poland was now replacing three different bits of territory that have been in three different states prior to the war. They each had their own traditions and they had a difficult enough job in marrying the different ways of legal thinking. Consequently, I think it is wrong to look at the civil law countries as necessarily being one great block that are all the same.
If all of the lawyers who are trained in a country are brought up in that way of thinking, then it is very hard to change that in any radical way.
The most known and cited common law systems are the UK and the USA, but smaller countries like Ireland, Cyprus and Malta also apply this legal thinking. Is it more challenging for these smaller countries to maintain judicial institutions under Common law or is there any other difficulties that this state creates?
Well, I think it potentially may create an issue within the European Union in that. Creating common laws throughout the union that work equally well in each of the Member States is difficult enough. Sometimes laws, if people do not think through how they would fit within a common law system, may be difficult to apply. Up to now, I suppose to an extent, Ireland, Cyprus and Malta were able to rely on the UK to make the case if there was, for example, a proposal for a directive and there was some issue about whether that directive needed to be adjusted a little to allow it to work properly in a common law system. The UK could be relied on to make that case to get whatever changes were needed. But with the UK being out of the EU at this point, I think this role will largely fall to Ireland to some extent because while we are not very big, we are a lot bigger than Cyprus and a great deal bigger than Malta.
I know that in Ireland the Office of the Attorney General and various relevant government departments may have to play a much bigger role in scrutinizing European legislation to ensure that it is relatively straightforward in terms of its incorporation into a common law system.
What is the biggest obstacle in the application of EU law? Is it the level of abstraction of these texts or what makes it more difficult in a Common Law system to apply the regulations and the directives?
I think it depends. In some areas, it is not particularly difficult at all. And I think Irish lawyers and Irish judges are now comfortable with the fact that the interpretation of European legal instruments may have to be conducted in a somewhat different way to the interpretation of national law. And while that maybe took a little while to get used to, I think that is now embedded in the Irish system. But for example, I personally think that one of the greatest areas of difference between common law countries and civil law countries is in the litigation system. There are often measures adopted, increasingly in recent times, that do not fit very well into the traditional common law way of doing things.
So just take one example in the area of consumer law. There is an obligation under the relevant directives for the court itself to carry out an assessment as to whether the terms of a consumer contract are unfair.
The traditional common law approach to contracts is that it is a matter for the parties to put forward whatever argument they make. Consequently, if a party does not suggest some particular clause or provision to prove that a contract is unfair, then it is not for the court to, as it were, of its own motion, ex officio to inquire into it. Large courts with a typical common law system were not set up well to do that. The judges would not have the time traditionally in the lower courts where those kinds of issues would arise to fully scrutinize aspects of a contract to which their attention had not been drawn by the parties. So I think measures like that have created some difficulties.
In the environmental field, we have had the ‘not prohibitively expensive’ element which has caused particular problems for our House in the implementation of the public participation directive. Which again, I think, stems from the fact that a much greater part of the work in litigation is done by the parties in the common law system as opposed to the court. That is typical of a common law system and it is, therefore, no surprise that the ‘not prohibitively expensive’ element caused a lot of trouble in the UK and in Ireland, but not so much in most of the other Member States.
So I think there are examples of the fact that something that may work perfectly easily in one Member State may not work so well in another that has a very different legal system. And unless those issues are addressed at the time of the adoption of whatever legal measure is concerned, if you have harmonized laws, you may have some trouble in harmonized application throughout the EU.
You mentioned the ‘prohibitively expensive’ legal costs. How can applicants be helped to avoid these procedural obstacles? I think it is an issue that is raised in every field, not just in environmental law.
Sure, I have said before that I think one of the biggest issues may be coming over the next 10 years in Ireland is the provision in the Charter (of Fundamental Rights of the European Union) that says that legal aid must be provided in any case where it would not be effective for someone to enforce rights guaranteed by European law without legal aid. So I think probably the government is going to have to consider some sort of legal aid system in environmental cases. There is a civil legal aid system in place in Ireland, but it does not extend to many areas outside family law and other narrower areas as the separate criminal law system does. The argument I have always made is that the government saves money by having a common law court system because it costs less to run. Moreover, the government should spend some of the money it saves in that way by providing legal aid to assist those who cannot effectively enforce their rights without legal aid.
You mentioned that there is this trouble with the application of the Charter, and the ‘not prohibitively expensive’ phrase originally from the Aarhus Convention. There is another issue in the environmental law field I would like to address, that is Ireland planning to establish specialized environmental courts. How can you summarize this concept and what are the main questions that arise in this field?
Well, I think that is not really an individual environmental court at the moment. It is not intended, as I understand it, to be established as a separate institution. It would be a subdivision within the High Court that would deal with all environmental cases. But to a large extent, I think that is the case already. There are judges who are experts in environmental law who deal with most of these cases. So I actually think this is a case where the government is selling something as a big deal, whereas in fact it is not anything like as big a deal because it is largely there already.
Perhaps it does not apply to smaller environmental cases and that might be an argument in favour of expanding it. The model that they are hoping to rely on is one that did work very well. About 20 years ago, there was a concern that significant commercial cases were taking too long, were costing too much. It was a barrier to the proper conduct of business and was a disincentive to foreign companies to invest in Ireland because everyone hopes not to get involved in litigation in business, and you want to know that – e.g. if you engage in challenging regulatory decisions – you have an effective court system to navigate in.
What was set up, in response to this, was a division of the High Court, colloquially called the Commercial Court. It was given extra judges experienced in commercial disputes and it has worked very effectively. The times for cases have been reduced from numbers of years to rarely more than one year and often a lot less. Therefore, it has been considered a success.
Personally, I think it is a better model to have it within the High Court than have an entirely separate court that is totally different because then that court personally would only have a small number of judges. If you needed some extra judges for a month because there were a lot of cases which were urgent, you would not have the means of appointing those judges this way. Whereas if it is within the High Court, the President of the High Court can move judges around. So I actually think it is a good idea; however, I take it slightly oversold by the Government.
So the so-called Environmental Court is just a separate section of the High Court. Does this mean that cases can easily arrive to the Supreme Court in this field?
It does, yes.
The interview continues in a second part.