Brexit has provided fertile ground for the "forces of darkness" in Northern Ireland, the North's Lord Chief Justice, Sir Declan Morgan, has said.
In an address to a conference entitled Is Brexit a Challenge to the Rule of Law on the Island of Ireland?, he said the adherence of elements of the community to "the notion of success through violence hangs over us like a dark, foreboding shadow".
Sir Declan referred to the nights of violence that began on March 29th last, mostly in loyalist areas, sparked by anger at the post-Brexit Northern Ireland protocol.
He also referred to the appearance before a Northern Ireland committee of representatives of the Loyalist Communities Council, which represents three loyalist paramilitary groups, during which there were statements that Brexit might cause people to resort to violence.
EU law will continue to have an effect for some time to come in many areas of Northern Ireland’s executive, legislature and judicial branches, he said.
That fact, in itself, “is currently a catalyst for violence and a consequent breakdown in adherence to the rule of law in Northern Ireland society”.
The rule of law required not just an independent judiciary but also a consensus about underlying arrangements.
‘Painfully obvious’
“It is painfully obvious in Northern Ireland that we have experienced too often a failure of politics to focus on solutions and as a consequence this has promoted division.”
Sir Declan was taking part in the second day of a remote conference organised by the Bar Council, on the topic of human rights at home and abroad.
In his address to the conference, the State’s Chief Justice Frank Clarke, responded to criticism last year about a member of the Supreme Court taking part in a protest in Warsaw against measures affecting judicial independence in Poland.
Mr Justice John McMenamin represented the Association of Judges of Ireland at the protest, and brought a message of support from the Chief Justice.
"Those who have argued that it was none of our business were wrong," Mr Justice Clarke said.
“It is our business. It is the legitimate business of all judges to be concerned about the rule of law in other countries, and it is particularly the legitimate business of judges of member states of the European Union, to be concerned about the independence of judges in other member states.”
He said he supported the view that judges should exercise restraint in relation to commenting on public affairs. However, he said it was legitimate for judges to express their views on matters affecting the judiciary, even in other jurisdictions. Irish judges were increasingly involved in international associations and organisations.
‘Real danger’
“These bodies spoke with one voice in coming out in strong support of our colleagues in Poland,” he said.
“This wasn’t a frolic on its own on behalf of the Irish judiciary becoming involved in a foreign field.”
It was part of the functioning of the European legal system that judges in one member state enforced decisions made in other member states.
It was a necessary condition of the system that when doing so, judges believed, that the decision they were upholding had been made by an independent judge, who did his or her best to come up with a fair decision.
There would be a “real danger” for the Irish courts if they were to be seen to be enforcing decisions made by courts about which there were legitimate concerns, as the Irish courts would be “tainted by that process”, he said.
