The country’s top judge has warned that Ireland needs to ensure “a common law voice” remains heard in the formulation of EU legislation in the post-Brexit era.
The Chief Justice, Mr Justice Frank Clarke, said Ireland was now the only fully common law country in the EU following the UK’s exit, while the two member states with a mixed common and civil law system – Cyprus and Malta – are considerably smaller jurisdictions.
In a keynote speech at Trinity College Dublin on Tuesday night on the future of the common law system in Ireland post-Brexit, Mr Justice Clarke said fitting EU measures into a common law system can sometimes be difficult.
“One of the real challenges for the common law in Ireland post-Brexit is that a large voice at European legislative and judicial tables will no longer be there,” he remarked.
“Putting forward the case for tweaking measures to make it easier for them to fit into a common law system is a role which will now fall largely on Ireland although we will, doubtless, have some support from our colleagues in Cyprus and Malta.”
Mr Justice Clarke said he thought those challenges posed a risk for the common law in Ireland.
While he accepted there was no widespread demand from within the EU or its institutions to attempt to change Ireland’s legal system against our will, the Chief Justice said his main concern was that measures adopted by the EU could have unintended consequences.
Having a common law voice presence at the EU table was important to minimise the risk of EU legislation causing such unanticipated problems when transposed into the law of a common law jurisdiction, the Chief Justice said.
He noted quite considerable difficulties had been encountered in the past in attempting to adapt the procedures in common law countries to certain types of European legislation which he suspected would continue in the future.
Mr Justice Clarke said unintended consequences could potentially make it more difficult for Ireland to maintain its common law system by accident rather than by design.
While the problems were not insurmountable, Mr Justice Clarke said the issue would require “significant vigilance.”.
However, he said addressing the issue would require greater resources being put into discussions at European level on proposed legislation.
In the past, Mr Justice Clarke said there were many occasions where Ireland had been content to allow UK officials to take the lead role on common law issues unless there was a specific Irish angle to a question.
He said it had to be acknowledged that the UK, as a significant player within the EU, had made a material difference on the development of EU legislation.
The Chief Justice claimed there would also be a need for Ireland to intervene more in proceedings before the Court of Justice of the European Union where there was a common law angle to be addressed.