A 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 €1m daily fine against Poland after its constitutional tribunal ruled that basic principles of EU law were incompatible with the Polish constitution.

Justice Clarke questioned whether the fines would be likely to have a huge effect on such a big country.

"I think to be effective, it would need to be more than a fine of a million a day, but exactly what is legally permissible is itself a question, and you don't want to enforce the rule of law by breaking the rule of law yourself, so there does need to be a proper legal basis for any measures which are adopted," he said.

"That isn’t necessarily very easy."

Warsaw was ordered to pay the daily charge last month, for maintaining a disciplinary chamber for its judges, which critics argued threatened the independence of the country’s judiciary.

The country’s nationalist government had previously promised to abolish the chamber, which is charged with keeping the country’s judges in line.

Justice Clarke said running up such a fine of €365 million a year would not have too much effect on a country like Poland, with a population eight times the size of Ireland.

Poland's nationalist government is involved in a series of long-running disputes with the EU regarding issues such as the rule of law and judicial reforms.

Last month, the country’s highest court ruled that some parts of EU treaties were incompatible with the Poland's own national constitution, challenging a pillar of European integration and sharply escalating the dispute between Brussels and Warsaw.

The European Commission said the ruling raised serious concerns about the primacy of EU law, setting it on a full collision course with Poland's nationalist rulers.

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.
"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."

Justice Clarke also spoke about the growth of populism as a challenge to the European Union.

Commenting on the principle of the primacy of EU law, he said the coherence of the European legal system required that: "the law is the same, whether it's being applied in Dublin, or in Madrid or in Riga."

He said any measures that allowed for a deviation from this, brought with them the possibility of creating "different and incompatible results," which could challenge the coherence of the European legal space.

"We’ve come perhaps in recent years to realise that what seemed like extreme examples, do have a tendency to come more to pass in the current era, than perhaps might have been the case in the past," he said.

He said he could see a scenario in which a member state, that was opposed to a measure being considered by the EU, amended its national constitution to oppose this.

In this case, he said: "One could readily see how there could be a very rapid unravelling of the coherence of the European Union legal space."

He said the extent to which EU law had been dealt with in national constitutions across Europe varies from country to country and needs to be carefully looked at.

"Pretending it will go away won’t make it go away," he warned.

He said if there were real questions about how the rule-of-law is being applied in other member states, it could affect confidence in the judicial system here in Ireland too: "Ultimately, every legal system needs some court that makes the final call," he said.

The Chief Justice, who retired from his position last month, said he was old enough to have canvassed in the 1972 referendum for Ireland to join the EEC, and he had always been strongly in favour of this membership.

Additional reporting Eleanor Burnhill