Frank Clarke recalls an “adventurous” school trip to England at the height of the swinging 1960s. “I was actually able to stand on the streets of London during the summer of love. It was a mind-expanding experience.” He smiles: “Without artificial ways of doing it.”
A long-time devotee of legendary rock band Cream, whose former guitarist Eric Clapton recently made headlines over his vocal opposition to Covid-19 restrictions, Clarke saw graffiti in London proclaiming "Clapton is God".
“Maybe in music, not beyond that.”
The following year Clarke was off to UCD in pursuit of more mind expansion. He ultimately opted for a legal career which has spanned almost 50 years, culminating in his appointment as chief justice. He retired this week, two days before his 70th birthday.
After leaving Drimnagh Castle secondary school, Clarke was the first in his family to go to university.
The late 1960s, early 1970s, were a relatively optimistic time. People thought boundaries were expanding, maybe more than they actually were, but if you believed you could do things, you were more likely to try.
His father, a customs officer, had died when he was aged 10. Soon after he and his mother left their home on Dublin’s Long Mile Road for a flat in Dolphins Barn. A hard-working secretary, his mother was “a big influence” on her only child. “Whatever I wanted to do, she supported me in doing it.”
When he went to UCD, Clarke had “no great idea” what he wanted to be. “I knew I wanted to go to university, but what I wanted to do after that was very much up in the air.”
His interest in debating took him to UCD's Literary & Historical Society, where he met Michael McDowell (who was later best man at his wedding) and Adrian Hardiman, both intent on legal careers. Law, Clarke decided, was "as good a thing to do as any".
“The late 1960s, early 1970s, were a relatively optimistic time. People thought boundaries were expanding, maybe more than they actually were, but if you believed you could do things, you were more likely to try.”
Inspired by the Just Society vision of Declan Costello, Clarke had joined Fine Gael after leaving school. He wrote speeches for Garret FitzGerald, and was election agent for former FG minister George Birmingham, now president of the Court of Appeal. Clarke ran, unsuccessfully, for the Seanad in the 1980s.
First steps
He studied maths and economics at UCD while also attending the King’s Inns. He was the King’s Inns’ first student under the new third-level grant-aid scheme introduced by Donogh O’Malley, and had to explain to them what that was.
His greatest difficulty after being called to the bar was “getting my first steps” there. “There’s a basic vicious circle – if you’re not experienced, people are reluctant to give you work, but you don’t get experience unless you get work.”
Connections also mattered, but he considers himself lucky because "things were expanding" in the 1970s and the number of High Court judges was increasing, meaning more work for lawyers.
There were just eight female barristers in the Law Library when he entered it in 1973, including Mary Robinson, later Ireland's first female President, and Mella Carroll, the first female High Court judge, he notes.
Clarke’s affability made him well liked, and his career got an early boost when he was junior counsel for the applicant in the 1975 landmark case Healy v Donoghue, which established a constitutional right to legal aid in criminal cases.
Another high-profile case was Cox v Ireland in 1990 which identified the right to earn a livelihood and introduced proportionality into Irish constitutional law for the first time. (The proportionality test requires a measure to have a legitimate objective, to be suitable and necessary to achieve that objective, and to be reasonable in the circumstances.)
He appeared for the State when it defeated a challenge by tobacco companies over bans on tobacco advertising, but was on the losing side in the seminal case by gardaí after the shooting dead of John Carty in Abbeylara, which set limits on the Oireachtas' powers of investigation.
Rights and Referendums
Having been appointed a judge of the High Court in 2004, Clarke was elevated to the Supreme Court in 2012, and succeeded Susan Denham as chief justice in 2017.
His judgments on the major public law cases taken by Angela Kerins and by Denis O'Brien clarified the law on parliamentary privilege (the legal immunity provided by the Constitution for members of the Oireachtas which prevents them being held liable for actions or statements made by them during their legislative work).
Those and other judgments demonstrate what Dr Tom Hickey of the school of law and government at DCU describes as a "very sophisticated" sense of the separation of powers and "very keen sense" of judicial responsibility to uphold the democratic system.
Hickey regards Clarke as at the vanguard of an emerging “derived rights” doctrine in the Supreme Court involving “repackaging and reining in” the “unenumerated rights” doctrine of the Supreme Courts of the 1960s and 1970s.
Both doctrines centre on Article 40, which recognises four rights which the State “shall, in particular, protect”. That implies there may be other rights which, while not specifically expressed, may enjoy constitutional protection and the job of judges, over time, is to identify those as they decide cases. Some unenumerated rights previously identified include the rights to bodily integrity and marital privacy.
Clarke maintains the derived rights doctrine is “not so different” from the unenumerated rights doctrine, but he believes “unenumerated” might create an impression of judges “plucking” rights out of some moral ether.
“I don’t think it ever was that, but the name could suggest that, that’s why I think rooting a right in the text of the Constitution, in a creative way, not divorced from the text, is important.”
Among the derived rights identified by the Clarke-led Supreme Court include the right to seek work, set out in the judgment on an appeal by a Burmese man who spent years in direct provision awaiting a final decision on his asylum application.
A 2020 Supreme Court judgment, written by Clarke, which allowed an appeal by Friends of the Irish Environment over deficits in the government’s climate change Bill, clearly sets out his thinking on derived rights. That judgment stopped short of finding a right to an environment, suggesting it might be preferable any such right should be subject to a public debate and democratic control.
In discussing whether the derived rights doctrine might avail those seeking a right to housing, Clarke, who has described himself as “socially progressive”, suggests judges interpreting a conscious decision by the people in a referendum that they would like a particular type of right incorporated into the Constitution is preferable to some form of diktat from unelected judges.
“That does not mean there isn’t room for some form of further interpretation by the courts, I think that will continue but, for these big ticket ideas, there may be a stronger case to be made they should be subject to a specific referendum rather than it being open to debate about whether the judges have gone too far.”
Highlights and lowlights
Clarke declined to discuss the Golfgate controversy, saying that was not appropriate in light of upcoming Supreme Court hearings. The controversy arose from the August 2020 attendance of then newly-appointed Supreme Court judge Séamus Woulfe, a former attorney general, at an Oireachtas golf society dinner a day after the government announced new guidelines reducing numbers at indoor events.
It culminated in the publication of correspondence between Clarke and Woulfe in which the chief justice expressed his personal view that Woulfe should resign.
Woulfe, whom former chief justice Denham had concluded in a review had broken no law but should not have attended the dinner for reasons of propriety, refused to resign and remains on the court.
Lawyers remain divided over Clarke's handling of Golfgate, but many believe it would be unfair to permit it to dominate assessment of his legacy. In tributes this week many pointed to his judgments, leadership of the fledgling Judicial Council and access to justice initiatives as core elements of that legacy.
The court is now more up to date than it has ever been; it is for others to judge the quality of what we have done.
Incoming chief justice Donal O’Donnell last weekend told a top-level Access to Justice conference, organised by a working group established by Clarke, that it was “particularly appropriate” that Clarke’s career, which started with a “ground-breaking” judgment on legal aid, should come to a close as chief justice promoting a cross-disciplinary conference on access to justice.
According to Clarke, presiding over an efficient Supreme Court, getting the long-awaited Judicial Council up and running and advancing an access to justice agenda are the highlights of his tenure as chief justice.
He says the primary job of the chief justice, as president of the Supreme Court, is to make sure the Supreme Court functions well. “I’d like to think that has happened. The court is now more up to date than it has ever been; it is for others to judge the quality of what we have done.”
Huge consequence
This interview takes place at the table in the Supreme Court conference room, surrounded by bookshelves housing ancient legal tomes, where judges decide cases, some of huge consequence.
Clarke says he never came across “any personal rancour” even when judges strongly disagree on the correct outcome to a case. “You may not be best friends with everyone but you need a good professional working relationship for the system to work.”
The establishment of the Judicial Council has been “very significant”, he considers. Its approval this year of new guidelines aimed at reducing personal injury awards “has put the focus back on the insurance industry to deliver reductions”.
“There appears to be some moves in that direction, whether those are enough, or fast enough.”
He declines to express a view whether legal costs reform should be dealt with by non-binding guidelines or legislation, saying that is “a policy issue for others”, but points out that access to justice includes access for defendants. “If the cost of defending is such that a defendant has to make a settlement that does not reflect a true assessment of the risk of the case, that is impacting on their access to justice.”
In preparation for a new system for dealing with complaints against judges, draft guidelines on judicial ethics and conduct have been put before the council’s board and are being considered by judges. Such guidelines, which might have assisted in dealing with Golfgate and more recent controversies, are expected to be approved by next summer.
It's important the Supreme Court is not seen as a Dublin institution– its decisions affect people everywhere.
In relation to improving access to justice, Clarke particularly welcomes two significant developments: the establishment of a process in the Department of Justice for implementation of the 2020 Kelly report, which contains 90 recommendations for reform of the civil justice system; and a Courts Service modernisation programme, including the replacement of “pretty antiquated” IT systems.
These, plus the Government’s commitment to a review of civil legal aid, collectively may do something good about access problems, he believes.
Clarke has enthusiastically continued the Supreme Court’s outreach programme initiated by Denham, involving sitting in venues outside Dublin. “It’s important the Supreme Court is not seen as a Dublin institution– its decisions affect people everywhere.”
The court also has a secondary school online programme.
As chief justice, Clarke considers his biggest challenge was steering the courts through the “very difficult” situation resulting from Covid-19. While some things could have been done better, “I like to think we handled it okay.”
He is conscious the pandemic had a disproportionately negative effect on some litigants and lawyers, in particular those involved in criminal and other witness cases, effectively halted due to restrictions on numbers.
The delay, due to Covid-19 and funding issues, in delivering on the new court building at Hammond Lane is another lowlight, he considers.
It is anticipated the building will now open in 2026.
Changes
Clarke has seen some substantial changes in his legal career, particularly concerning gender balance in the bar and judiciary. “The gender balance is now not quite 50/50 but it’s getting there.”
Keeping in practice remains an issue for women which needs to be looked at, "perhaps by the Bar Council in particular".
The type of litigation has changed enormously, EU law influences have grown and the operation of the higher courts is “very different” for reasons including the appointment of more judges.
Research suggests the judiciary is “possibly more egalitarian”, partly as a result of the introduction of the free education scheme in the late 1960s, he notes. While he believes it is easier now for those who don’t come from comfortable backgrounds to become judges, “it’s not perfect yet” .
On proposed changes in how judges are appointed, Clarke stresses the Constitution gives government the final decision, and there is “a limit to how much you can water that down”.
The current Bill proposing a 50/50 division between lay and judicial members on the new Judicial Appointments Commission, chaired by the chief justice, is "fine", but an earlier proposal, involving a smaller number of judges, was "not in conformity with best European practice".
He says having the best judges requires getting the best possible candidates, good training and having sufficient numbers of judges.
There is “a great dichotomy”, he considers, between some elements of public comment about judges.
“People want judges to be immune from the human condition in some sense but they want them to be grounded too, and judges can’t be both things at the same time.
“That’s not to say it’s a good thing for judges to be seen rolling out of pubs at 2am or whatever. A balance between allowing judges to live as normal a life as possible will enable them to be a bit more rounded, and grounded.”
Achievement
There is a sense of achievement, Clarke acknowledges, in rising to the rank of chief justice from being the first member of his family to go to university. “Once you get the start, you just go as far as you can.”
It was nice within a single career box to maybe reinvent yourself every decade or so, to do something slightly different.
He had always thought, “in a very vague way, being a judge at the end of your career is something you might want to do”.
“It’s partly about public service and partly because doing exactly the same thing for too long is not necessarily a good idea. It was nice within a single career box to maybe reinvent yourself every decade or so, to do something slightly different.
“I have absolutely enjoyed it, there have been days that were not so enjoyable, but, in the round, yes. I had no great idea what I wanted to do, but I think I found the hole that suited the shape of my peg, as it were, by luck more than anything else. I’m just very glad it happened to work out that way.”
As we exit the Supreme Court sanctum, Clarke diverts to a corridor to show me framed drawings of men, many in colourful, ornate, ecclesiastical-type robes that would not look out of place in the Vatican or the court of Louis XIV.
“There was an idea, after independence, that Irish judges should look different from their English counterparts,” Clarke says. His smile suggests he is relieved to have had a lucky escape.
