Giving his address at Friday’s (31 January) formal opening of the ECtHR new legal year, the chief justice said: "We are a small country, but we like to think that we contribute more than our size might suggest. To use an English phrase, we punch above our weight."
He said that the phrase ‘harmonisation’ as used in EU law has a precise meaning, which involves making the law in each member state coincide with all others, subject to the discretion allowed by the terms of certain directives.
The objective of the Human Rights Convention and of the ECtHR is not to harmonise human-rights law in that strict sense, but to ensure that minimum standards for the protection of human rights across the states of the Council of Europe are maintained, while respecting the plurality of national and international fundamental rights protections.
He pointed to “significant differences” in the way in which international treaties are applied.
“In that context, my own jurisdiction is, I think, at one end of the spectrum, given that article 29.6 of the Irish Constitution expressly states that no international agreement is to be part of the domestic law of Ireland, except in a manner determined by the Irish Parliament,” he said.
Other states, to a greater or lesser extent, do regard international treaties as potentially forming part of domestic law.
Therefore, the precise way in which international human-rights instruments influence national proceedings can vary significantly.
One of the difficulties involved in building a coherent and harmonious approach to the vindication of human rights is the challenge of properly understanding and, where appropriate, applying the reasoning of colleagues across disparate states.
“We do not need to be the same, but we have sufficient common legal traditions to make it important that we strive to ensure that we also share a coherent and harmonious human-rights order,” he said.
The chief justice identified an underlying issue that national courts are now “faced with a range of international human-rights instruments, which have at least the potential, in one way or another, to have a bearing on the result of individual cases, and where, therefore, any potential differences, however subtle, between [various international] instruments, may need to be considered”.
He said that interpretation of a nation’s own language, and via its own national laws and systems, might cause debate and disagreement in the human-rights field.
But the chief justice emphasised that developing the dialogue that already exists at a number of levels provides the best means of ensuring coherence and enhancing a harmonious approach to international human rights.
Success or failure
Court proceedings in member states must conclude with either the success, or failure, of a claim, he commented.
Therefore, a debate was required on the increasing volume of international instruments that can potentially influence the result of individual cases.
However, most international human-rights instruments point in broadly the same direction, and recognise similar kinds of rights, the Irish chief justice said.
But the most difficult cases involve fine judgments, and questions of weight and issues of balance.
“More than one right may be involved, and the ultimate question may come down to deciding how to reconcile competing rights,” he said.
Differences of opinion
There may frequently be room for legitimate difference of opinion on interpretation he said.
“National courts must interpret their national human-rights instruments in accordance with their own norms,” he said.
And he pointed out that member states spend a lot of time negotiating the terms of international treaties on the basis of their texts.
Different phrases in human-rights instruments adopted nationally could potentially create problems, he said.
This is where enhanced dialogue plays a part – both at a high level between courts charged with cross-border enforcement of rights; and the regular vertical interaction between national courts and supra-national courts.
He added that both formal and informal bi-lateral meetings between Ireland’s Supreme Court and the Court of Justice in Luxembourg were invaluable in terms of creating greater understanding of matters of mutual interest.
Another form of dialogue comes from courts that consider the judgments of other countries. Admissible proceedings to the ECtHR are only considered when remedies within the national legal system have been exhausted.
“It follows that this court has to consider the way in which national courts charged with protecting human rights have dealt with the case in question.
“Furthermore, the jurisprudence of this court will clearly form part of the consideration given by national courts in such cases, even if the precise way in which the Convention may apply within the national legal order may vary,” he said.
Such vertical dialogue between national courts and supra-national courts must be enhanced, he urged. Likewise, an understanding of how the apex courts of other states have dealt with similar problems can often be useful.
But a broad-based horizontal dialogue between higher national courts is only in its infancy and needs to be encouraged to include consideration on a comparative law basis of respective jurisprudence.
But such dialogue presents time challenges, particularly for the Irish Supreme Court, which has competence in both constitutional and ordinary legal matters.
“We cannot spend most of our time attending meetings and conferences, no matter how interesting, valuable and pleasurable that might be,” the chief justice commented.
The challenge of becoming familiar with the case law of colleagues from other states will vary, depending on national legal practice, because some will have significant research departments.
He added that, in the common-law tradition in Ireland, there was an obligation on any advocate representing a party “to research and place before the court any relevant legal materials which might legitimately influence the court’s view of the law”.
This applied even where the material in question might be unfavourable to the advocate’s case, he said.
This duty also includes an obligation to place relevant comparative material before the court but, of course, the sheer volume of potential material now available online must place a practical limit on that obligation.
However, the chief justice said that finding the correct legal context for judgments was paramount, because there could be a danger of being misled on the true question being decided.
“What may be obvious to those operating within one national legal order may not be at all so obvious to someone reading a judgment who comes from a materially different legal system,” he pointed out.
Superficially, issues might appear to be the same, but they might be significantly influenced by specific measures within the national legal order, or the way in which these make an impact.
Chief Justice Clarke said that he had often had to emphasise to advocates appearing in the Irish Supreme Court who, when referring to judgments from different states, must establish that the court concerned was really answering the same question.
This presents real challenges in establishing a coherent and harmonious human-rights order, he said, but the rewards are potentially well worth the effort.
A deeper understanding between senior national judiciaries was to everyone’s benefit, he said. And the freedom to differ was best exercised with a thorough understanding of how common issues were approached in different states, and the reasons why colleague courts have come to the judgments they have.
“We must face the undoubted challenges of properly understanding and, where appropriate, applying the reasoning of respected colleagues across our many disparate states,” he concluded.
No Irish person has been given the honour of addressing the opening of the ECtHR before.
Chief Justice Clarke said that the ‘vertical’ dialogue between national courts and supra-national courts had developed to a reasonable extent. But this must be enhanced, despite the time challenges involved, he insisted.
“There is a challenge for us all in making the time to engage meaningfully in such dialogue when we are all faced with significant caseloads – and where it is natural that our first attention is directed towards what is, after all, our primary role, which is to consider and fairly decide those cases which come before us,” he said.
However the least-developed pillar of judicial dialogue was bi-lateral or multi-lateral discussions between national courts charged with enforcing human rights and, in particular, courts at the apex of national systems, he said.
There are close contacts between the judiciaries of neighbouring countries and, in particular, those that share similar legal systems and traditions, he said.
But national legal orders may differ on the extent to which it is considered permissible to have regard to the jurisprudence of other state courts in developing their own case law.
An understanding of how the apex courts of other states have dealt with similar problems can often be useful, the chief justice said.
In that context, he praised the development of shared databases of relevant decisions taken by the higher courts in the national legal orders.
He also welcomed increased interaction by European judges – such as next month’s meeting in Riga of European Court of Justice members and senior members of national judiciaries.
On the agenda will be the common constitutional traditions within the European Union.
Post-Brexit, Ireland will be the largest English-speaking EU member state with a common-law system, and could well attract international cases seeking resolution in a familiar legal territory, the chief justice said.
He added that Brexit would present additional challenges for Ireland – and not least for the Irish legal system.
“But we are also a legal system governed by a strong Constitution and, thus, our own national constitutional jurisprudence is richly informed, both by the jurisprudence of this court [ECtHR], but also that of the supreme courts of other prominent common-law jurisdictions.
“I would like to think that the diversity of influences, which that brings to bear, enhances our understanding and protection of human rights,” he said.
The threat of populism to the rule of law was also a challenge, he said.
“Human rights cannot be asserted if there is a threat to independence or recognition of the authority of the court that asserts those rights,” he said.
“When we think of the development of the international legal order that includes human rights, it is important to note the progress made in 70 years,” he said
“This court, and the Convention it applies, have a developed tradition that leads the common approach to the protection of human rights.”
States are also free to provide a higher level of protection for human rights under their national regimes, he said.
Due to the support provided directly by Ireland, all of the court’s public hearings since 2007 have been filmed, and can be viewed in their entirety, with interpretation in both French and English.