Chief Justice calls for ‘direct dialogue’ between EU supreme courts

Chief Justice Frank Clarke has called for more "direct dialogue" between senior members of the judiciary from across the European Union to give added context to discussions around legal topics.

Speaking at the first annual Supreme Court review in Trinity College Dublin on Saturday, Mr Justice Clarke said the development of a shared information platform for apex courts could lead to significant increase of "horizontal influence" from different European legal bodies.

"I predict that the discourse is going to widen from traditional discourse that has happened in Ireland within the common law world and the two European over-arching courts to extend to a more horizontal influence from supreme courts," he said.

“If you have access not just to the UK supreme court but what other supreme courts are saying...that gives added context.”

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In his paper presented at the review, Mr Justice Clarke wrote that historically the Irish courts have kept close contact with courts in the UK, particularly in Northern Ireland.

However, he noted that in recent years there has been increasing dialogue between the higher courts of EU member states and the Council of Europe.

Citing three Europe-wide bodies which represent different strands of supreme courts in the EU, Mr Justice Clarke said their work had “increasingly fostered a range of co-operative ventures which, in my view, are likely to lead to an increasing use of judgements or decisions across jurisdictional borders”.

He highlighted the importance of “information-sharing platforms” or databases which could be used to share important cases that may be of interest across different jurisdictions.

This kind of development would enable supreme courts to access reliable sources on important law cases across different jurisdictions, he said.

He noted that some European supreme courts were “quite young in age” and relied heavily on comparative analysis when coming to a decision. He added that others drew less inspiration from the decisions of other courts and indicated they would not consider the decisions of other courts in their rulings.

This sharing of information was highly likely to become significant in an Irish context, said Mr Justice Clarke, adding that it could lead to the expansion of a “horizontal European influence”.

He also cited a recent declaration from the Court of Justice of the European Union which described the network of judicial cooperation as a “clear sign of the emergence of a true European legal area” and drew attention to “the essential role played by the network of EU justice, composed of the national courts and the Court of Justice, in developing and upholding the fundamental rights and the values of democracy and the rule of law on which the European Union is based”.

Mr Justice Clarke concluded that it would become increasingly common for senior Irish courts to consider and cite decisions of other senior European jurisdictions just as it had, in the past, considered the reasoning of courts from the common law world, including the UK and US.

“Whether, and in what way, such developments might be influenced by Brexit is but one more imponderable of the consequences of the departure of the major common law jurisdiction from the European Union.”

Last month, while speaking at Fordham University in New York, Mr Justice Clarke said Brexit would create a significant opportunity for Ireland to become a centre for international dispute resolution.

Currently London is a major hub for dispute resolutions involving US corporations and others doing business in the European Union. Like the US, England is a common law jurisdiction and the rulings of its courts have an effect across the EU.

Ireland is the second-largest common law jurisdiction in the EU, after the UK. Post-Brexit, Ireland will be the only EU jurisdiction where English is the spoken language, common law operates, and court rulings will be of consequence across the EU.