Judge concerned about foreign jurisprudence

A Supreme Court judge recently expressed concern at some of the ways foreign jurisprudence is relied upon in argument before the Irish courts.

In an address at Griffith College Dublin, Mr Justice Frank Clarke said the widening scope of jurisdictions whose authority was cited as persuasive has led to "significant difficulty" because foreign courts were often influenced by specific legislative or constitutional measures which had no Irish parallel.

Mr Justice Clarke did stress the importance of being aware of authority from other jurisdictions: it makes sense for a small country to at least consider the views of the major courts in countries with comparable legal systems, he said.

Furthermore, upon gaining Independence in 1922, Ireland chose to maintain the existing legal system provided it was consistent with the Free State Constitution and, later, Bunreacht na hÉireann.

So it followed that the country would look to other common law jurisdictions – Britain in particular – for influence, Mr Justice Clarke said in his opening comments.

“However,” he added, “it does need to be strongly emphasised that careful consideration needs to be given to the issue of whether the foreign court concerned was answering the same question as the Irish court is now being asked to address.”

He added that he had “sometimes seen paragraphs plucked out of foreign authority and included in written submissions to the Irish courts [where] the foreign court was answering a very different question or was addressing issues of principle which were significantly influenced by its own legislation or constitutional provisions”.

This sort of large-scale citation of isolated paragraphs from foreign jurisprudence was a “real danger”, Mr Justice Clarke said. It was one that he predicted would continue to get worse because of the ease of access to international legal databases.

He said the general problem was of even greater significance in the constitutional field. As constitutional rights documents emerged in other common law jurisdictions such as Canada and New Zealand, case law from those countries started to be cited more frequently in Ireland.

“But that leads to the very real question as to whether such authority is always relevant,” he added.

He argued that constitutions often approached common questions in similar ways “but constitutions are by no means always the same”. In some cases, as in Ireland, the people had voted directly on the constitution, but elsewhere they came about by less direct means, such as through a qualified majority within parliaments.

“It is open to argument that insufficient attention is paid to the precise terms in which different constitutional regimes are expressed,” Mr Justice Clarke said.

He then focused on the influence of the “European dimension” on Irish law. The rights guaranteed under the Irish Constitution were broadly similar to those guaranteed under the European Convention on Human Rights, he said. Thus, the jurisprudence of the European Court of Human Rights remained an important source of persuasive authority when the Irish courts are called upon to consider the Constitution.

He also expected the EU Charter of Fundamental Rights (which lists civic, political, social and economic rights) to play an increasingly relevant role in Irish law in the future.

This formal charter came about as a result of the Lisbon Treaty and the precise extent of its influence remained a matter for legal debate, “at least at the edges”.

Whatever the precise boundaries of the charter’s applicability, its treaty status along with Ireland’s obligations as a member state of the European Union means, it was now part of the Irish constitutional structure, “at least in some areas”.

Although a significant part of the influence of those two EU documents came from a civil law world, with a different legal culture, “I think it is fair to say that Ireland has . . . assimilated well”, Mr Justice Clarke said.

He did, however, offer a word of caution. “There is perhaps a danger in the use of terminology borrowed from other legal systems in circumstances where the precise understanding of what is meant may not be exactly the same.”

For example, the formulation of the doctrine of proportionality widely applied in Ireland was one borrowed from the Canadian courts rather than any European jurisdiction. Similarly, he added, “it might be asked whether legitimate expectation might be given exactly the same meaning in a common law country as might be considered by a European Union court or by the courts of a civil law member state”.

In his closing comments, Mr Justice Clarke touched upon the possible incorporation of social and economic rights into the Irish Constitution.

Although this was a policy consideration, he noted, inappropriate for comment from a serving judge, he said it might be “important to emphasise” that debate on such a matter might consider the questions of comparative text, comparative legal cultures and the use of relevant foreign jurisprudence – “perhaps, in this case, South African”.