Ireland’s former chief justice has criticised a British government proposal to bring in legislation that would allow it to override court judgments.
Justice Frank Clarke said the proposed plans are a “serious attack” on the rule of law and a “fundamental breach” of the separation of powers.
Britain’s justice secretary Dominic Raab last month announced details about how he plans to prevent interference from Strasbourg in British matters as part of his overhaul of the Human Rights Act.
He indicated that the British government would seek to establish a mechanism to allow ministers to override court judgments, whether passed by the European Court of Human Rights or British judges.
Justice Clarke told the Institute of International and European Affairs (IIEA) that if the “exotic proposals” were to find their way into law, it would “raise questions”.
“If you’re simply trying to overturn a decision and say, ‘we don’t like that decision’, and it is hereby no longer the decision and something else is the decision, I think that’s a fundamental breach of the separation of powers, and would be a serious attack on the rule of law,” he added.
“Perhaps (it is) a more direct attack than those which are criticised in some countries where you don’t change the decisions, but change the judges in the hope that the new judges will come up with different decisions.
“But to actually directly change the decisions of them would, I think, be quite a direct attack on the rule of law.
“Whether they go down that route is perhaps another day’s work, we’ll have to see what actually happens rather than what people threatened might happen.
“One sometimes could be forgiven for thinking that some of this is just playing to a certain constituency, and will it actually manifest in real change may not be quite as clear as the rhetoric might suggest.”
Justice Clarke also said that the European Union is sailing “unchartered legal waters” as to what remedies it has to sanction member states who reject the supremacy of EU law.
The European Court of Justice (ECJ) has imposed a €1 million daily fine against Poland after its constitutional tribunal ruled that basic principles of EU law were incompatible with the Polish constitution.
The ECJ also launched infringement proceedings against Germany over an alleged breach of the supremacy of EU law.
Justice Clarke said the findings of the German and Polish courts “water down” the supremacy of EU law.
"So while it is clear that EU law has primacy, there is however a distinction in how constitutions treat EU law, and how they treat international agreements"
— IIEA (@iiea) November 23, 2021
“They certainly do from the perspective of the national constitution of those countries,” he added.
“As a matter of European Union, it is clear that the courts of the member states are required to disapply national laws, including national constitutional laws, which conflict with European Union law.
“One of the problems here is we’re sailing in somewhat uncharted legal waters as to what remedies there are for these problems.
“The treaties don’t have absolutely explicit measures that can be adopted.
“One of the problems, of course, is the easy way of dealing with it would be a measure adopted under the treaties by all of the other member states.
“But as long as you have two member states that aren’t toeing what would be perceived to be the Brussels line, then the practical possibility of adopting those measures, which are the only ones expressly recognised in the treaties, is no longer there.”
