Menu
Ireland's political and cultural magazine
48 April 2023 April 2023 49
I
rish law and UK law are predictably similar since
the Irish legal system derives from the English
legal System. From the time of Poynings Law in
1495 all English Statutes had eect in Ireland.
As is characteristic of former British territories,
Ireland is a largely uncodified common law system as
opposed to a continental-style civil law system.
Common law systems place great reliance on
previous Court decisions, setting precedents for
principles to be applied in later cases where the facts
are similar. European systems are codified, leaving far
less discretion to judges.
English legl
sysems kes righs
bi more seriously
By David
Langwallner
Irish and English legal systems reflect their people and their history
The role of the judge, legal procedure, laws
of evidence, the role of equity, the separation
of powers and the organisation of legal
professionals are similar in Ireland and the UK
But it is not only the laws that are similar. The legal
systems including, in particular, the role of the judge,
legal procedure, laws of evidence, the role of equity,
the separation of powers and the organisation of legal
professionals are almost identical in Ireland to that in
England and Wales and Northern Ireland.
Commenting on the position after Brexit, former EU
Advocate General, Gerard Hogan who now sits on
Ireland’s Supreme Court explained: “the beating heart
of the common law – oral hearings, the doctrine of
precedent, English legal writing, individual judicial
autonomy and multiple judgments – will remain strong
in the country once described as the ‘first adventure of
the common law’”.
So, for example, there is a direct correspondence of
the court structure. There is a High Court, Court of
Appeal and Supreme Court in Ireland just as in the
United Kingdom. Circuit courts mirror County courts.
The District court is the equivalent of the Magistrates
Court. The Law Lords were abolished in 2009
eliminating a divergence.
CULTURE
48 April 2023 April 2023 49
The common law trial is the basic mechanism
for resolution of disputes and follows an almost
identical format in both jurisdictions.
Similar Organisation
and Practice
The Irish legal profession is organised into
barristers and solicitors in the same way as
England and Wales and Northern Ireland,
though in England barristers often practise out
of more structured less nepotistic group
‘chambers’ rather than as independent
practitioners.
Brexit
With British withdrawal from the European
Union, the only practical decision was to say that
all existing EU law, both legislation and judicial
decisions, continues in eect. It now becomes a
special form of domestic law, known as
“retained EU law”, Successive lightweight
Conservative Prime Ministers in the UK, spurred
by extremists, have proposed to make British
bonfires of EU regulations in spheres like social
welfare, environment, energy and consumer
standards. When Rishi Sunak was losing the
leadership contest he pledged to review or
repeal every bit of retained European law lurking
in British statutes within 100 days of taking
oce. If he does so he may very well collapse
the common good and may bring on a trade war.
At the time of writing Sunak is alternately
denying the UK may leave the European
Convention on Human Rights and threatening
another Brexit, this time from the Convention if
he is not allowed to turn migrant boats away
from UK shores.
Ireland and Northern Ireland
The similarity in laws between Ireland and
Northern Ireland is even greater as a consequence
of our shared history as a single jurisdiction
under the English crown until the passage of the
Government of Ireland Act, 1920, The Westminster
parliament regularly passed legislation that only
applied to Ireland such as the nineteenth century
coercion acts. Property is inevitably a dierent
prospect in a colony. As a result, Irish and
Northern Irish law in the areas of property, trust
and equity are very closely aligned.
A similar corpus of case law means that Irish
laws of contract, civil wrongs, restitution,
personal property, tort, sale of goods, and
agency share many similarities with their English
equivalents.
Ireland and the UK:
sectoral comparisons
Let’s look at a couple of indicative examples –
consumer and data law.
Consumer Law
Both countries apply the Sale of Goods Act, 1893
and numerous EU Directives, but, there is no Irish
equivalent of the UK Unfair Contract Terms Act
1977 nor legislation on third party rights. While
Ireland had intended to follow in the steps of the
UK Consumer Rights changes at EU level have led
to its suspension for the time being.
The nation of shopkeepers/shoppers is more
consumer-oriented. Brexit bonfires may
eliminate some of the typically Directive-based
consumer protections.
Catharine Macmillan has argued that Brexit is
likely to mean that the English courts will
interpret any surviving EU legislation more in
accordance with English principles such as
freedom of contract and caveat emptor, thus
moving away from the broader protection which
EU law seeks to provide its citizens.
Employment Law
On balance, employment law in Ireland is more
favourable to employees.
Minimum wage rates are similar: €11.30 versus
(from April) £10.42 (€11.67).
Statutory sick pay exists in the UK, but there is
no statutory sick pay in Ireland – though there
may be a contractual entitlement.
Where illegal discrimination is established
there is a limit of two years’ remuneration in
Ireland but no upper limit in the UK.
Redundancy payment entitlements in Ireland
are calculated on service alone whereas in the UK
regard is had to the age of the employee,.
To claim unfair dismissal in Ireland you need
only one year’s service, whereas in the UK you
need 2 years’ service
The maximum working week (48 hours) cannot
be opted out of in Ireland but can be in the UK.
Agency workers in Ireland have protection
from no less favourable treatment from day one,
whereas in the UK it is from 12 weeks.
Though it is under current review, there is no
obligation on an Irish employer to recognise
trade unions in the workplace for bargaining
purposes; in the UK the union can follow a
statutory route to seek recognition. Sunak is
considering changing this for key workers.
In Ireland you can be an employee or self
employed contractor; in the UK you can be an
employee, or self employed, or a worker
Employees seeking injunctions in Ireland are
much more likely to succeed than in a UK court.
Irish workers benefit from our post-Colonial
egalitarianism, tempered by our over
enthusiastic embrace of American standards of
service and deference to the demands of mobile
global capitalism. Brexit, with the UK slipping
out of EU labour rights imperatives, suggests
this will be heightened.
Data Protection
The data protection regimes in both jurisdictions
are very similar, which is to be expected as both
have their origins in the EU’s General Data
Protection Regulations. However, the Data
Protection Act, 2018, which gave legal eect to
GDPR in Ireland, allows the regulations to be
implemented dierently.
The Data Protection Commission (DPC) is the
Irish supervisory authority but it can use more
robust enforcement and investigation methods.
Specifically, the DPC has access to premises,
documents, and records used to process
personal data. It has greater scope to enforce
data protections including issuing information
and enforcement notices and, in extreme cases,
levy fines and initiate prosecutions. In reality
though it is under-resourced and famous for its
torpid enforcement.
Protecting Fundamental
Human Rights
My experience as a barrister in both jurisdictions
and a lecturer of 16 years in constitutional law
in the King’s Inns has underlined for me a sense
of the key distinction in the Irish legal system
Irish courts have
consistently
sidestepped the
practical consequences
for individuals of
the vindication of
their constitutional
rights which are
acknowledged on paper
but ignored in real life
Brexited
50 April 2023 April 2023 51
between the theory and practice of protecting
rights and liberties. Irish courts have
consistently sidestepped the practical
consequences for individuals of the vindication
of their constitutional rights which are
acknowledged on paper but ignored in real life.
Recent manifestations of this include Judge
Hogan’s majority judgment in the Supreme
Court in November overplaying the — weak –
Constitution as ascendant over the – stronger
– European Court of Human Rights: in this case
on the matter of the rights of a Canadian national
seeking a visa extension.
All very well to elevate the constitution but we
have not struck down a major piece of legislation
in over 20 years and Ireland’s recent due process
record is abject, culminating in the JC case,
which allowed the Garda to reap the proceeds of
illegal acts provided they are in “good faith”.
Another telltale domestic judgment was that
of the High Court in the Graham Dwyer murder
case which shirked the European Convention on
Human Rights but also appeared to disapply the
EU’s own human rights law on privacy and its
recent European Court of Justice decisions on
data protection, in the case of mobile-phone-
location evidence, preferring the weaker
protections of Bunreacht na hÉireann.
Judge Tony Hunt said it would not be
appropriate for him to comment on the European
court’s approach, “save to say it exhibits a
strange and unusual set of priorities”.
He also said that there is no evidence for the
court’s finding that mobile phone data would
“possibly reveal a significant amount of the
private life of the person concerned”, a view
which he snily said is “not universally held
outside the membership of the Court of Justice”.
Fundamental rights are under threat. In the UK
the right to protest has been abolished. In
Ireland broadcasters may not broadcast
anything which “may reasonably be regarded as
causing oence”. These are extraordinarily
draconian interventions.
The treatment of the Proceeds of Crime Act,
1996 started the rot. The Irish courts upheld that
law reducing the standard for expropriating
criminals from the criminal “beyond all
reasonable doubt” to “on balance”. The act
places excessive faith in the ethical integrity of
the police. The UK is just as bad: ASBOs and
gang injunctions operate to the same lower
standard.
Sometimes debate about the protection of
fundamental human rights in Britain can
descend into tabloid criticism of the European
Convention on Human Rights. In practice,
human rights are often taken more seriously
there — by the courts as opposed to the
admittedly delinquent recent Tory governments.
Britain is more practical, empirical, realistic,
less hypocritical. For example, I represented a
client in the UK who was given a suspended
sentence because he suffered from an
underlying health condition such that there
would be a real danger to his life under the terms
of Article. I doubt if an Irish court would have
been as humane, or, would have taken these
rights as seriously.
Social and Economic Rights
Regrettably neither country recognises social
and economic rights: only civil and political
rights, though they do in India and South Africa.
Place of Religion
In both the UK, where the head of state must “be
in communion with” the Church of England, and
Ireland, where the constitution is invoked “in the
name of the Holy Spirit”, religion is a fundament
to the constitution, to the consternation of
secularists.
Appointment of Judges
In Ireland, the creation of the Judicial
Appointments Commission to be grounded by
an Act will reduce concerns about political input.
It is explicit in the legislation that the commission
can only use the single criterion of ¨merit¨ to
determine appointments.
In 2022, 35% of judges in the UK were
women while 7% of judges identify as black
or minority ethnic groups and the figures are
somewhat lower in the higher courts. The
average age of a judge is 66.
CIVIL CASE
CRIMINAL CASE
Central Criminal
Court
SUPREME COURT
High Court
COURT OF APPEAL
CIRCUIT COURT
DISTRICT COURT
Special Criminal
Court
SUPREME COURT
Crown Court
European Court
of Justice
European Court
of Human Rights
Family County CourtsQueen Bench
HIGH COURT
Criminal Division Civil Division
COURT OF APPEAL
Magistrates Court Tribunals County Courts
Top, court system in
Englnd nd Wles,
Left, court system in
Irelnd
??
50 April 2023 April 2023 51
Meanwhile, the Irish bench continues to be stacked
with the same privileged, middle-class, and politically-
approved lawyers, with entirely self-serving and
elusive – sometimes atavistic – entirely self-serving
allegiances to the big parties that actually choose the
judges from lists more scrupulously compiled. Yet no
scandal is generated.
To be fair, the proportion of women appointed to the
bench is now creditable. Women now comprise 42 per
cent of the 172 members of the judiciary here,
compared to 13 per cent in 1996.
The defence of the nomination of unqualified,
incompetent and racist Harold Carswell to the US
Supreme Court was that: “Even if he were mediocre,
there are a lot of mediocre judges and people and
lawyers. They are entitled to a little representation
aren’t they, and a little chance? We can’t have all
Brandeises, Frankfurters, and Cardozos”. This sort of
line appears to be acceptable in Ireland, particularly in
the lower courts.
In the UK, the 2005 Constitutional Reform Act’s “tie-
breaker clause” allows that, where two candidates are
of equal merit, one may be preferred over the other for
“the purpose of increasing diversity”.
Furthermore, in performing its functions, the
Judicial Appointments Commission in England and
Wales “must have regard for the needs to encourage
diversity in the range of persons available for
appointments”.
Although the pace of change is frustratingly slow,
there is an undeniable commitment to achieving a
bench that is reflective of British society at large. And
there is a recognition, dating back to the Stephen
Lawrence Inquiry, that structural racism is endemic in
the British criminal justice system and the problem
persists to this day.
Dumbing down is a problem in both jurisdictions,
But at least the judges in the UK are in general better
educated – senior barristers and courts administered
seem far more likely to have post-graduate or specialist
qualifications as well as diversity of upbringing.
Ireland has only a sixth of the number of judges per
head that the typical European country has – but has
twice as many lawyers, according to a report by the
Council of Europe. The starting salary of judges in
Ireland is almost three times that of the average,
reflecting our deference to professionals. Ireland
spends less per inhabitant on the courts system than
the typical member state – at €31 per 100,000 people
here, compared to almost €44 per person on average
and at least twice that in the UK.
Non-jury Trials
Counter-intuitively for such a progressive lawyer,
Georey Robertson, QC, has argued for the elective
use of non-jury courts. As an advocate in the Special
Criminal Court in Ireland, I have found them to be
dangerous and draconian outposts - conviction courts.
As with Northern Ireland’s Diplock Courts, in the
Republic the Special Criminal Court has evolved to
become entrenched in the legal system, their judges
hardened, and their jurisdiction widened. The scope of
the Special Criminal Court initially extended to
politically motivated terrorist suspects but now
encompasses organised crime suspects including of
course Gerard Hutch.
Lawyers’ trial practice
Unlike in Ireland, I have not seen witness coaching in
the UK. In Ireland and the US, cases are often
manufactured by the state. This is a particular feature
of the corrupt relationship between prosecutors, state
agencies, including police forces, and social services.
In short, lawyers practising in the UK legal system are
much less corrupt. The British police and state do not
actively go out to frame people to quite the same
extent.
History, and the future
My view, like Professor Laurent Pech’s, is that agency
capture of the judiciary coupled with an increasingly
bland press and a docile populace have created a
consumerist consensus in both the UK and Ireland
whereby precious liberties, fought for over centuries,
are now sacrificed on the alter of security.
Ireland in particular is already turning into an
antiseptic version of democracy such as operated in
Singapore democracy where individuality is relegated.
Both countries’ legal systems reflect their histories
and indeed their national characters.
The UK is an ancient empire, rich and cosmopolitan,
riven still by class, Mercantilist with shades of
Socialism, often deferential, Empiricist, Jingoistic at
times but tempered by moderation. Its tragedy is that
it is increasingly short-termist.
Ireland is a new Republic, post-colonial, with an
ancient inferiority complex now being superseded by
a misplaced superiority complex, well-educated but
parochial. It remains mercifully suspicious of authority.
The UK has grown lazy over rights which derive from
Magna Carta in the Eleventh Century. Boris Johnson’s
attempt to prorogue parliament was preposterous. In
Ireland rights are enshrined in a constitution and
perhaps more instinctively embedded.
On balance, although imperilled and set on a
slippery downward slope, the UK at least, unlike
Ireland, takes rights seriously in the courts; protects
the rule of law, and is likely to continue to do so for at
least a few more years. Though it scores higher than
the UK on skewed-liberal standards such as the
Economist’s, Ireland lacks self-awareness of its
compromised democracy.
In neither jurisdiction do the political or judicial
classes seem fully aware of threats to the rule of law;
less still of how to deal with them.
Dumbing down is a problem in both jurisdictions,
but at least the legal establishment in the UK are
in general better trained
