Common law in the EU integration, environmental law and constitutional identity of Ireland (Part II)

The Honourable Mr. Justice Frank Clarke was the 12^th 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.

The first part of the interview can be found here.

To what extent do you think that supreme and constitutional courts engaged in constitutional review should/can decide on these environmental matters?

Well, firstly, I take a reasonable number of the most important cases end up being referred to the Court of Justice in Luxembourg anyway because they often involve European law. I think there is now a high level of understanding and expertise in Ireland in relation to environmental law. Quite a number of important cases in the area have been Irish cases that were referred by the Irish courts to the Court of Justice of the EU. I think partly that is because the Irish legislation was often not very good at transposing European Union law into national law and that perhaps created more problems than was absolutely necessary.

Also, I think it is fair to say that European Union law itself is sometimes a bit vague. For example, if we take that ‘not prohibitively expensive’ term, what does that mean? In practice, is it a 1,000 euros? Is it 50 euros? Is it 5,000 euros? I remember, having heard the current President of the Court of Justice, Koen Lenaerts, saying on a number of occasions that he felt that the European law in certain areas is often left deliberately vague because that is the only way it could get through the legislative process because the 27 member states cannot always agree on the details. So they put in something vague because they can sign up to that and leave it to the courts to sort out later what it means in practical terms. There is a layer of negotiation before producing legislation in almost all areas that we, in English, might best describe as ‘constructive ambiguity’. In other words, you have to be a bit ambiguous because it is the only way you can achieve something.

I think in certain areas EU law can be like that where the details cannot be agreed upon and therefore clarification will be left up to the courts. But the problem then, of course, is that it takes a number of years before court cases come through, and if they have to go to Luxembourg that means further delays. If you introduce a new, not very clear measure, it is probably going to be 7 to 10 years before there is enough case law from the Court of Justice to make clear how it actually will work in practice. But I would like to think we have done reasonably well with environmental law. Maybe not at the very beginning of the interaction between European Union law and Irish law perhaps the expertise was not there at that time.

And of course, harking back to one of the possible strengths of the common law system is the obligation on lawyers to put forward all the materials that are relevant to the facts at issue. So the court gets the benefit of very good lawyers who are experts in their respective areas, drawing their attention to perhaps not the mainstream case-law of the Court of Justice, but other cases that might have some relevance from the case-law of other apex courts throughout the Union and say, well actually this point happened to be considered by the Conseil d’Etat in Paris. It is what they thought about it, so that might be of interest. A good Council (i.e. Council of State in France, le Conseil d’Etat) will do that and that I think improves the overall result from the point of view of the system.

You mentioned that these cases were often referred to the Court of Luxembourg. Strategic litigation is becoming an issue globally. In your practice, have you been engaged in adjudicating strategic litigation in terms of environmental cases? Are you aware of any such cases in Ireland?

I suppose the biggest strategic litigation in Ireland in the last short while was the case brought by Friends of the Irish Environment on the Irish Government's Climate Program as a result of which the Supreme Court dropped down the program as being excessively vague and not specific enough. Interestingly, that case came after the decision of the Dutch Supreme Court in the Urgenda case. We were the next one. We slighted parts of what the Dutch court had said, and then in Germany, they had their Bundesklimaschutzgesetz case a little after. There are four or five mentions of our judgement in the decision of the Bundesverfassungsgericht. So I think that is an example of two things.

It is very strategic litigation aimed at what are perceived to be inadequacies in governments’ climate programs. It also shows a sort of commonality between the constitutional courts throughout the Union, each paying attention to what other courts have said and quoting from what they found on the facts or on legal issues.

Obviously, no constitutional court is bound by what another one thinks. But where the issues are similar, I think courts are increasingly looking at what their counterparts are saying and say: “well, they think that is the very reason we should think differently if there is something in our constitution that is different, or if there is some logical reason for taking a different view. But if not, that is a persuasive argument that found favour with this court that we respect, and we should certainly pay a lot of attention to that.”

To end our interview, I have a question, especially about Ireland. One of the original characteristics of the Constitution of Ireland is that the Constitution, if amended, has to be approved by referendum. It is interesting that you apply both direct and indirect democratic elements in this procedure. Are there any other elements of Irish constitutional identity that are specific to Ireland and special procedures or institutions that are unique in Europe?

Perhaps not unique, but unusual is the so-called Article 26 reference, which is the procedure where, as you probably know, the President in Ireland has very limited political powers. The President is largely ceremonial, though can often exercise influence at a soft power level if you like, but has very little hard power. One of the actual constitutional powers which the President has is signing what has been passed by the Parliament into law. The President does not have what I might call policy discretion to not sign these laws. The fact that the President might not like the law is not a reason why the President can decline to sign. If the President considers that the law is inconsistent with the Constitution, the President can refer the law directly to the Supreme Court. And it is one of only two cases where a case or an issue can come straight to the Supreme Court and not be brought by parties in the ordinary way through the lower courts and come to the Supreme Court as an appeal. The Supreme Court has a period of 60 days within which it must give a judgment on whether the law is constitutional. So it is an ex ante provision, meaning that the law does not come into force because it has not yet been signed by the President. After that, the President cannot sign it unless in possession of the decision of the Supreme Court saying that it is consistent with the Constitution.

There is a second leg to that which many people are a little concerned about. The same provision of the Constitution also says that if the Supreme Court says it is constitutional, it can never be challenged again. One of the interesting curiosities of the way it works in practice is that the Supreme Court nominates the advocates to make the case against the bill to say that the bill is unconstitutional. The government through the attorney general appoints a roll lawyer to defend. So I was honored enough twice when I was in practice to be nominated by the Supreme Court to argue cases against two particular bills. But it is quite a frightening situation because you have only 60 days and you have to put in your written observations typically within about 25, 30 days and then an oral hearing follows, which happens within another ten days and then to give the court time to formulate its opinion. But you're always afraid that you may in that very tight time frame miss something. An argument that could have been put up, a set of circumstances where that bill might affect people in a disproportionately unfair way, or whatever that you just did not think of. And then you are afraid that three years down the line, that case will happen and people say, well, why did not you think of that? And if you had thought of that, that argument was put before the court, maybe the court might have taken a different view.

So you were referred to defend the Government’s side in these cases before becoming Chief Justice?

Yes, I was the advocate. In our model, most judges, and this will be one of the bigger differences between the civil and common law system, typically judges are appointed perhaps in their late 40s or during their early 50s, having been advocates for a long period of time, our senior judges are selected from experienced advocates. Unlike the situation in most continental countries where you become a very junior judge, more or less straight out of law graduation. I was probably 52 when I became a high court judge. But before that I had been an advocate. And I was therefore appointed by the court to be the advocate to put forward arguments as to why bills were not constitutional as part of the process of the government having their lawyers arguing for the alternative. So I was a barrister, but I usually use the term advocate for it when I am talking to continental lawyers.

Thank you. Returning to the previous question in this context, could we pick up with the description of challenging constitutional amendments?

Yes. There would be a school of thought arguing that amendments should never be challenged again because it is written in the Constitution. So short of changing them, there is no way around them. However, there are many who think that challenging amendments for five years or ten years might be sensible, but not never. Also conditions change: things that might have been thought to be perfectly okay 50 years ago were not thought to be okay now. The fact that the Supreme Court of 1962 thought something was constitutional, would not automatically mean that a Supreme Court in 2022 might not take a different view. So it is an unusual procedure and it has its advantages and disadvantages.

I do not know whether this is so, but it is interesting that the current president, President Higgins, has not referred any bills. It might be that he has a view that permanent immunity from challenge is not a good idea and therefore he thinks it is better if he signs bills into law, if someone wants to challenge them thereafter, that is fine. I think that is probably, in terms of the process, the only other matter that is very different in the Irish system.

Obviously, we have had many constitutional amendments, particularly in the area of what one might call sexual issues. In the broad sense, we had originally a prohibition on divorce which made us perhaps a very unusual country where you could not be divorced no matter of what.

How long was divorce banned in the constitution?

It was in the original constitution in 1937.

It was an attempt to remove it by referendum in the 1980s which was defeated. So it stayed out of the second referendum in the 1990s. So as of 1990, which is not that long ago, there was no divorce in Ireland because the constitution said there could not be divorce.

We also had the pro-life amendment in the 1980s, which was designed to prevent abortion. Then we had the repeal of that amendment only a few years ago in a second referendum to reverse the first one. So there have obviously been contentious issues and they are often fought out in the constitution. The divorce issue was in the constitution. So it was not a matter of parliament could deal with, without a constitutional change, equally the pro-life amendment and its repeal were in the constitution. So again, could not be dealt with except by a referendum.

But could I make one point which I think is interesting about the amendment of the Constitution by referendum, as you rightly say, it is an interesting combination of direct and indirect democracy. And I think one of the things that it does is it gives the people a greater sort of ownership of the constitution because even now and then there is a big debate about do we put in these words or do we take out these words or do we allow for this or not allow for that?

I think that perhaps gives a greater democratic legitimacy to the Supreme Court's constitutional role, because the Supreme Court is applying a constitution that the people kind of feel an ownership of rather than seven judges sitting at Dublin around a table thinking, would not this be a nice thing or would this be a bad thing or whatever? Those judges are interpreting words that the people had really put into, not just theoretically. Perhaps it gives a greater acceptance of the role of the Supreme Court in interpreting and applying the constitution.

On the other hand, it may also demand greater acceptance on the part of the Supreme Court of the need to respect the wording of the Constitution because that is what the people have decided, and that is what you are to interpret.

Of course, constitutional wording is often very general. It is not the place for very specific measures. However, the Supreme Court is dealing with the words that the people of themselves have chosen. I think that gives a greater legitimacy to it. Additionally, it is interesting whenever we have significant referendums, as part of the national debate, there will often be lawyers talking about, well, this wording is likely to have this effect. And some people who oppose may say we think the wording will have effects that you might not like and here is our view on that. So even the legal implications of the text of the Constitution, if amended, is often the subject of some fairly detailed debate in the public domain, which I think is good for a hands-on sort of direct democracy.