 Well, good afternoon, everyone, and I'm very pleased to be able to welcome you to this Institute of International and European Affairs event. It's part of the Global Europe project, which is supported by the Department of Foreign Affairs. And the aim of that project is to analyze and to communicate to the wider public the debate on the future of Europe on the European Union's role in the world, and indeed on Ireland's role in the multilateral order. And we are honored and delighted to be joined today by Mr Justice Frank Clark, who, as we all know, was Chief Justice of Ireland from 2017 to 2021 and who has been kind and generous enough to take a time out of what I understand is still an enormously busy schedule to speak to us today about the rule of law in the European Union. The plan is that Mr Justice Clark would speak to us for about 20 to 25 minutes, and then we will move on to a question and answer session with our audience. You'll be able to join the discussion using the question and answer function on Zoom, which you should be able to see at the bottom of your screen. Please feel free to send your questions throughout the session as they occur to you, and we'll come to them once Judge Clark has concluded with his presentation. If I could please request to keep your questions as brief as possible in that way, we can get to as many as possible during the event. May I remind you also that today's presentation and the questions and answers that follow it are both on the record and the address will be uploaded to the institutes website and to YouTube. We'd also encourage our guests in this technological ages to tweet using the handle at IIEA, and we're also live streaming at this afternoon's discussion so very warm welcome also to all of you who are actually joining us at the YouTube. I'd now like to formally introduce Mr Justice Clark, and then without any further ado, I will hand the floor over to him. Mr Justice Frank Clark was, as I've already mentioned, Chief Justice of Ireland from July 2017 to October 2021. He was called to the Bar of Ireland in 1973, and to the Inner Bar in 1985 appointed a judge of the High Court in 2004. He was made a judge of the Supreme Court, subsequently in 2012. He was the ACA Europe correspondent for the Supreme Court from 2013 for eight years and was a Vice President of the Network of the Presidents of the Supreme Judicial Courts of the European Union. He has also taken a strong interest in matters of academic, always a good sign, and is a former, has formerly taught law at King Zinn's, was an adjunct professor of Trinity College Dublin, and also of University College Cork in addition to being a judge in residence at Griffith College. And he's a member of the distinguished and very vital panel provided for an article 255 of the Treaty on the Function of the European Union, which provides an opinion on the appointment of judges and indeed advocates general to the Court of Justice of the European Union. We're delighted to have them here with us today. And Chief Justice, I will now, if I may pass the floor over to yourself. Thank you very much for that kind introduction and it's a great pleasure to be able to participate in this very valuable program. And to offer some observations on the challenges to the rule of law and issues surrounding the rule of law in Europe, issues which have become quite tropical in recent times for reasons with which we are all familiar. Of course, those challenges are many and operate across a whole range of different areas, including the political with the growth of populism, and necessary that we do not ignore the reasons for those developments that are the reasons why they have fed into challenges to the rule of law. So, if I concentrate on other issues, it's not because I do not consider those matters to be particularly important, but rather that I feel that someone who spent his whole life as a practicing lawyer. As you have mentioned the last 17 years as a serving judge in a national court, there are perhaps particular aspects of the issue on which I might be able to bring to bear some expertise. My views on more general issues are probably no more developed than any avid reader of the newspapers. I would like to concentrate on two main issues, which I think are of importance, and perhaps have not been emphasized in all of the debate today. The first is a possible distinction between an issue which has come to the fore over the last two or so years, being what might be perceived to be challenges to the primacy of EU law from the perspective of certain AX national courts. Now, obviously, technically speaking, the primacy of EU law is not the same issue with the rule of law, but they do overlap to some extent and the issues they give rise to frequently occur in the same context. So I think it's a matter of well worth exploring at this stage. Secondly, the importance from the perspective of each national court within the European Union of respect for the rule of law in the national courts of each other member state. It's kind of been said that, well, in one sense, it's none of our business what's happening in other countries, and I'd like to demonstrate why, from the perspective of a national court, what is happening in the courts of other member states is a matter of significant importance to us, both as a general proposition but also in certain very specific way. So let's return to question one, and that's the question of the primacy of primacy of European Union law, but just like to make a couple of preliminary observations that anything I say might be misunderstood, and I might be considered to be drifting towards a a democratic wing on these issues have to make confessions. I'm old enough that I actually canvassed in the 1972 referendum to join the European Union. That's a great admission on my part. And I've come back to that referendum and the wording of the Constitutional Amendment that came about as a result of it. But I've always been strongly in favor of the European Union. And therefore I wouldn't like anything I say to be taken to imply anything to the contrary. Well secondly, I also understand and fully accept importance of the primacy of European Union law in the context of maintaining the coherence of what has in recent times come to be called the European legal space. So let's touch on why that's important before going on to identify what may be a problem that needs further exploration. Obviously, European Union law is by and large the same in all member states. Sometimes there is room for a degree of flexibility. For example, some countries have protocol exemptions from particular provisions of European Union law, and we of course in Ireland have the benefit for example of protocol 21, in respect of the area of freedom security injustice. Many European directives do confer a certain flexibility on the member states as to how they are to implement the requirements of the directive so that in itself contemplates the possibility that the detail of the law may be so different between member states. And nonetheless, the coherence of the European Union legal system the European legal space that does require that within the limits of what's permitted either by the treaties and their protocols, or the scope of flexibility conferred by directive. The law is the same, whether it's been applied in Dublin, or in Madrid, or in Rica. And measures that might allow for a deviation beyond that which is permitted has the real possibility of creating different and incompatible results. And when I come to question to part of what I will be addressing is the need that there is some court that makes a final decision on every issue of practicality between parties, and everyone has to recognize that. But likewise, if there is the real risk that the same issue maybe decided differently by different courts, then that challenges the coherence of the European legal space. And so I fully accept and understand that as a matter of an imperative that European Union level, the law has to be the same in all member states, subject to whatever legitimate latitude, the law itself confers. And while it may be a likely extreme example we've come perhaps in recent years to realize that what seems 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. Just imagine this it's often said well what about national constitution. Surely, they should have a role in deciding the parameters of what's permitted and not just European Union law. But it's not beyond the bounds of possibility and perhaps a more realistic proposition in the current climate that if a member state were opposed to a measure being considered by the Union legislators. Perhaps one adopted by qualified majority voting, the Council of Ministers, which that member state opposed and passed by the Parliament assuming it to be co legislation. If that member state were for example to amend its constitution to say we don't like that sort of thing, and then say well we don't therefore have to comply with that European Union legal provision, because the Constitution doesn't permit it. We'll eventually see how there could be a very rapid unraveling of the coherence of the European Union legal space. So, I mentioned these matters because I want to indicate that I strongly agree with all those propositions and of course, the legal position from the perspective of European Union law is clear, going back to seminal cases such as I'm going to lose over a half a year ago, which made clear that as a matter of European Union law, the European Union law is prime, it has primacy. But, while that much is clear, I think there is an issue which is now coming into some focus and which would bear them much greater consideration and perhaps study and investigation, which is the status that the institutions of member states confers on European Union law, not from the perspective of the European Union institutions themselves, but rather from the perspective of national constitution. In that context, it's perhaps important to look at the national court systems, they vary an awful lot as we know some countries, we're probably in a minority of a single Supreme Court which deals with everything, but more commonly member states of a separate court are tribunal. And it is often said, and is true to a significant extent that all of the courts of member states are to an extent European Union courts. And one of the significant distinctions between the European Union and the United States, for example, is that we do not have a system of European Union local courts. We do have, as I hope you won't be in a major dispute of a financial variety arising out of Wall Street, involving federal law. Your case will be heard by the federal courts for the Southern District of New York, which encompasses Manhattan. And we'll go through the US Circuit of Peels and the Supreme Court if necessary. The model in Europe is of course different. The vast majority of cases, applying on a day to day basis European Union law happen in national courts, which are required to apply European Union law. There is no European Union court for the district of the Western Islands, including that part of Ireland, which is part of the European Union. So in that sense, all courts within the European Union member states are European Union courts. But there's another sense in which that's not completely so, because the courts are created by, one might say, our creatures of their own national constitutions. There is nothing in the treaties that provides for their being a Supreme Court in Ireland, or a High Court, or a Court de Gassafion, or the Bundeswehr fast ones, or whatever. Each of those courts are created by their own constitution and are given their competences or jurisdictions by their own constitutions. And while it may be a matter more of form than a substance, it's interesting that the words of the declaration which in Irish judge makes on taking up office is to uphold the constitution and the laws, no mention of the treaty as it were. So that brings perhaps into focus the possibility that national constitutions recognize greater or lesser extent, the primacy of European Union law, and clearly to the extent that that may be better that create the potential conflict between the position in European Union law where European Union law is primate and the position potentially in at least some members of where that might not be quite so clear from the perspective of the national constitution. Perhaps it's worth starting with the Irish example in that we're perhaps outliers in two different directions. The European Union trees are of course international treaties, apart from creating rather rather unique set of legal structures. But the position generally of international treaties that the Irish constitution is quite interesting in that article 29 six of the Constitution provides that international treaties do not have the fourth of law, domestically, so ordained by the Iraqis. And that has been applied by the courts going back to the the lawless or old law leash case in the 1950s. So that Irish law does recognize the possibility that Ireland may be in breach of an international law obligation as a result of contracting into treaty obligations. Because the Iraqis hasn't chosen to adopt the domestic measures that are required to implement that treaty obligation. And therefore the possibility of a difference between international law and domestic law is itself fully recognized in the Irish constitution. Now, there are many measures adopted to minimize the risk of that happening and it would be not common that it could be recognized as happening in practice. And secondly, of course, if Ireland signs a treaty, care will undoubtedly be given by the relevant authorities to seek to ensure that Irish law is brought into conformity with any treaty obligations being undertaken and that's why sometimes it takes a while to ratify treaties, because legislation may need to be adopted to ensure that Ireland is in a position to comply with its obligation. And secondly, the courts have for many years adopted a policy of attempting where possible to interpret Irish law, perhaps implementing legislative measures and the like. So the goal is to bring Irish law into conformity with the treaty obligations that Ireland has adopted on the principle that it must be assumed that it was intended when Ireland adopted those measures that Ireland would comply with its international treaty obligations. The possibility remains that there will be a distinction between an international treaty obligation which Ireland has undertaken on the one hand and domestically on the other. And that possibility perhaps is all the greater in rights-based treaties where the understanding of the rights may evolve over time and where therefore what may now be considered covered by those rights-based obligations may be different than what might have been considered to be the case at the time the international treaty was originally entered into it, but that's perhaps for another day. The important point from the purpose of my lecture today is the possibility exists directly under the Irish constitution for there being a difference between what international law requires of Ireland and what Ireland does domestically. And in what's sometimes called the dualist system where international law does not have automatic status in the domestic field. Many other countries have a different position and to a greater or lesser extent recognize international law obligations as part of the domestic law. So there's a range of ways in which countries generally and the member states of the European Union in particular give recognition to international treaties. We've moved to those treaties which are of most relevance to the discussion today, the EU treaties. We're in fact on the other end of the scale in that other provisions of article 29 provide in effect for the supremacy of European Union law. And to go back to that original 1972 referendum leading to our accession at the beginning of 1973. The wording that was included in that constitutional amendment has in substance been repeated in each of the subsequent amendments, which were necessitated by the party decision, and which have followed on from further treaty changes, conferring greater jurisdiction or competence on the, the EC European Community and subsequently the European Union. And the wording generally says that nothing in the Constitution can render invalid measures, which are necessitated by membership of the European Union. So in our constitutional regime, the position of European Union law is expressly recognized and is freshly recognized in a way, which seems to confer primacy on European Union law. There has sometimes been a small debate about whose job it is to interpret the word necessitated. In other words, is that a matter for the CJU or could the Irish courts take their own view. And I think the majority view would certainly be that part of the treaties themselves confers on the CJU, the role of determining the validity of measures adopted by the Union, and therefore by signing up to the Union as it were, you sign up to the decision on validity issues, and that therefore if the CJU says something is necessitated, that means that it is necessitated by definition, as a matter of your opinion, you know, but that's, again, perhaps the debate that hasn't been well developed, and may never need to be developed. But I suppose that principle point emerging from all that is that there is a distinction between the way in which national constitutions treat international treaties and particularly European Union treaties. The German Constitutional Court, famous decision in May of last year on the ECB bond issue, is a case in point, it attracted a lot of attention, but I think it is fair to say that that court, the Bundesfassungsgericht, had previously indicated that it did not consider that in old circumstances, the German Constitution was overridden by the primacy of European Union law. It had never actually found a measure to be one which the German institutions were not allowed to apply before that, but it had certainly accepted the principle. And there have been some indications from other courts in recent times along the same line. So altogether apart from the recent Polish decision, there is now I think on the table, the question that needs to be looked at, which is, how do national constitutions, how have the member states in their national constitution, addressed the position of the law of the European Union. I think it varies from country to country, the extent to which international treaties generally are given the force of law within member states varies from member state to member state. And some, like us, have very specific constitutional provisions in respect of the European Union, others less so I think that's an area well worth further debate and further consideration, and pretending it will go away won't make it go away. And it is therefore I think an issue that needs to be addressed. The second issue I want to throw out for consideration is the position of national court in respect of potential challenges to the rule of law in the national court of other member states. As we go back, as you mentioned, in introducing me, I was called to the bar in 1973, which is the exact year which I heard the judge, the then European Economic Community. And at that time, hardly anyone knew much about European Union law I never studied it. There were a few clever people over in the corner, who were meant to know something about European Union law, and if by some curious miss chance, you needed to know something about it you went and asked one of them. But of course, that picture has radically changed in the almost 50 years since. So the European Union law now impinges in very many years. Perhaps the one area where it is lethal in Ireland is the criminal law area, precisely because of our protocol position under protocol at 21 but even there. We have exercised the opt in which that protocol recognizes into the European arrest warrant system and a daily part of the business of our court, particularly the High Court is backing warrants issued seeking request, the request for surrender from other member states and executing warrants, subject to the very limited exceptions, which the framework decision itself, and some of the case law of the CJ EU recognized. So, in that very real way, the Irish courts are required to respect the request for surrender made by a competent judicial authority in another member state but it goes far beyond that. And the courts to this regulation provides for all sorts of ways in which in civil and commercial and allocacy and in family law matter. And courts of one member state are required to recognize the decision of the courts of another member state, maybe required to stay proceedings before their own court in favor of another court, having jurisdiction on the matter, can frequently have proceedings, because another court is the court designated to decide which court should make the decision in an area as different as insolvency we have the insolvency recognition, which requires that a single court have overall responsibility for all corporate insolvency matters with other national courts only dealing with minor tangential issues. So in that whole range of areas across the daily work of national courts, we are required to respect in force. And it seems to me that that provides a very vital reason why it is a matter of legitimate interest to us to be concerned about the extent to which the rule of law properly applies in those in those other member states. And not only for the general reason that obviously how things are in other member states are of concern to all citizens of Europe, and not only for the slightly more particular reason that those in the legal community, obviously have a particular legal community in another member state's operation, but it has the very real potential to impact upon both for if we are being asked and required as a matter of union law to in effect, enforce decisions of other member states and not second to guess what the judge in that other member state decided, then that has the potential to affect confidence in our courts, if there are real question about whether the rule of law applies properly in those member states. And I would go so far as to say we're large to enforce the decisions of other courts, even though we might not think they're right, but ultimately every legal system needs some court that makes the final call. And if European Union law says that the German court or a Spanish court, then we have to respect that just as we would hope that they would respect it. So that is why it is a matter, I think of very real and legitimate concern to national court. Of course we need to be mindful of the fact that the structures of courts, the way in which judges are appointed, the way in which they're removed, and many of the other matters that can impact on the separation of powers and the rule of law differ very significantly from one country to another. And measures that may seem strange to us because they're different from the way we do it may work perfectly well in another member state. I always quote the example of constitutional courts. The Italian Constitutional Court, for example, consists of 15 judges, five of them are appointed by the President of the Republic, five of them are elected by the College of Judges, and five of them are elected by the Parliament. That seems rather strange to us. But nonetheless, that's a system that is, as I would understand it, well respected in the Italian regime. The judges of a bundes de facons, perhaps the leading constitutional court in Europe are elected by the Parliament with a sort of qualified majority. That means that the judges elected must at least have a broad acceptance across much, perhaps not all of the political range. And it's interesting that the current president of the Conseil Constitutional in France is a former Prime Minister of France, Laurent Fabrice. So, structures are different in different countries and we shouldn't jump to the assumption that just because it's different, there is a problem with the rule of law, but that doesn't mean that there aren't fundamental principles that do apply. And where those fundamental principles are undermined so that there are real questions that a reasonable person with reasonable knowledge of the situation would not trust the independence of the court. Then that is what brings the system into potential dispute, and it is a dispute that can extend not just to those in the country where that problem happens, but in all other member states whose courts are required to respect and enforce the judgments of those courts. So I think that's a real issue that requires serious action. It also requires, I think careful debate about what are those parameters that truly affect the rule of law and the avoidance of the impression that just because it's different to the way we do it, there must be something wrong with it. I think we perhaps don't have a sufficiently wide understanding of other systems that work perfectly well, and thereby an ability to understand that just because it's different, there isn't a problem. But within that question, we also need to understand where there is a problem to identify it and to seek to take action to ensure that that problem is immediate to the greatest extent possible. There are no easy answers, I think, to these questions, but I think there are questions that need to be faced for the future of the European Union. We need to face the first question I asked, which is the different views which may be held of the primacy of European Union law as a matter of the constitutions of national courts. And we also need to face questions around it, where we truly draw the line at the independence of the courts, what are mere differences in culture on the one hand, and what are differences that really go to the root of the separation of powers on the other. I don't have easy answers to any of those questions, but I think there are questions which we really do need to consider in greater detail than perhaps in the past, because they do fundamentally affect the coherence of the European Union. Thank you very much. Wonderful. Thank you very much indeed. Chief Justice for addressing the Institute and addressing those very serious questions so crucial to the importance to the future rather of the European Union and indeed in their own way I think it's fair to say, and even more crucial than the issue of Brexit has been. And now we've with a number of questions appearing on the question feeds at this stage so we'd encourage people to keep going on that we have about half an hour to deal with those questions so we'll have a look at some of them. I see Dan O'Brien, who's here in the Institute, has pushed one question which I think is very pertinent, and that is the frequency with which national courts are questioning supremacy seems to be increasing. We've had of course the Polish judgment there recently we've had the German one and of course you mentioned other ones as well. I think you're referring, referred to the Danish and the Italian courts, as well as when you spoke. So the frequency seems to be increasing. Is there a ready explanation for this, why is this happening. And do you think at this stage. That is, as I say, a hard question. I would, I would agree with Dan that there does. I haven't seen any numeric consideration. I certainly have the impression that he is correct in the premise of this question that there has been an increasing frequency. I'm minded to quote the slightly irreverent comment attributed to Warren Buffett, which was to the effect that we only see who's been swimming without their tongues on when the tide goes out. I think when things are operating happily, and there's no great practical challenge, then these issues, perhaps just don't emerge. There's much more likely to emerge where there are issues of very great controversy between Member States and the European Court. And I'm also, this is perhaps a side point but it's a point that I think is worth throwing in the mix here. What always interests me is the fact that we've now enshrined in the European treaties, the principle of subsidiarity, even though it was spoken of prior to Lisbon, it's now there in black and white. And in a very prominent position at the commencement of the Treaty of the European Union. A very interesting contrast between the case law of the European Court and that of the United States Supreme Court is the fact that so far as I'm aware there has never been a case. Where a measure of the European Union legislature has been struck down as invalid on the basis of breaching the principle of subsidiarity. It is the daily meat of constitutional litigation in the United States, where there is a constant debate about whether measures are within the competence of the federal authorities on the one hand, or the states on the other Obamacare, the great case about the validity of Obamacare was not about whether it breached anyone's rights or was a good thing or a bad thing. It was about whether the world's constitutional permission for the federal courts to do that. Ultimately Obamacare survived, but the usual debates in the states around things like the commerce laws or taxation provisions or the like, and whether they justify a measure. And it just interests me that regularly that is the center of debate in US constitutional case law, and it hasn't really featured in Europe. Perhaps the reason is up to now most European legislation has gone through by consensus. While we do have qualified majority voting, it seems to rarely feature as a practical matter because things tend to get sorted at the level of the council of ministers, and perhaps sorted again in negotiation between the council and the parliament before the legislation is passed. So we've had a sort of consensual model, whereby most measures of the European Union were ultimately done by consensus, and there therefore wasn't opposition by member states of any great extent to the decisions that were being taken. But perhaps that is now changing. And that may mean that people are exploring ways in which that lack of consensus can be challenged. And I always feel what leads to litigation of one sort or another requires two things, one, that people are against something or in favor of something and want to enforce it through the court. And secondly, that there's some at least vaguely respectable legal basis for the contention that they might want to put forward. I think probably the legal basis was always there. The desire to bring that kind of litigation perhaps wasn't there. But I think the less consensual model that exists nowadays may increase the amount of occasion when people will challenge. The challenge that led to the undisputed decisions was brought by I think from legal and economic academics. So there were people out there who were concerned about what was happening. They brought the challenge, and it succeeded in part, which you needed the people to be annoyed about the thing in the first place to bring the case. So I think it needs both the desire and the legal basis. And as I mentioned earlier, the legal basis I think was there all along, and the court had said that earlier, but perhaps there wasn't too much appetite for bringing the cases in the past. Interesting. That's certainly a very interesting take on it. Some fascinating questions coming in here. I noticed that Catherine Day, the former secretary general of the European Commission and an IEA board member has put forward an interesting question. She thanks you for a very thought provoking talk. And she asks, do you think the issues of primacy and the rule of law should be taken up the next time the treaties are renegotiated? Or would this merely open a can of worms that might lead to worse outcomes? That's a very good question. I mean, we saw what happened when there was an attempt to create the European Constitution. I know one could describe Lisbon as Constitution light in that it had a lot of the practical measures that were to be in the Constitution without giving it the sort of grandiose title of the Constitution. And that in itself is an interesting fact when that failed in referendums in both France and the Netherlands. So, I mean, it's interesting that primacy is a construct of the court, not directly of the treaties. For the reasons I indicated earlier, I think European Union law has to recognize primacy, but still, I wonder, would you get it through? I mean, we wouldn't have to change our model at all because we've done it already. But if you were to put up a treaty change that conferred primacy or indeed dealt with the rule of law and given the requirement for unanimity. I mean, it would be desirable if it could be done, but I would seriously question whether it would be practical politics to achieve it. And it might well be that the kind of worms analogy is the more correct view as to what would be likely to happen. I mean, it might be better to ask the question if you don't want the answer is perhaps another way of putting it. Good. Okay, moving on then Eleanor Bernhill of RTE has posed an interesting question and I suppose it's one that relates really to what's going on in relation to Poland at the moment. And the question is, are fines of up to one million euro per day likely to win over national populations, or could there be more persuasive mechanisms and can the EU do more to ensure the separation of judicial and political power. One would wonder whether a fine even of that level has a huge effect. I mean, even for a country of the size of Ireland. 365 million euro a year. That's not insignificant, but it's going to be a huge effect. It has a huge effect. I mean, even for a country of the size of Ireland. 365 million euro a year. That's not insignificant, but it, you know, what is it probably a small fraction of the Irish annual budget, less than 1%. I'm not sure what the GDP of Poland is but it's in population terms eight times as big as us so it's GDP must be a multiple of ours. So, I'm not sure they have a huge effect but then 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 that 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 towing what would be perceived to be the Brussels line, then the practical possibility of adopting those measures, which are the only ones expressed you recognize in the treaties is no longer there. And so, it's really I think a question of the commission in particular but also the other institutions trying to be creative about legal remedies, where there aren't ready made legal remedies and think to be effective. There's a 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. That is necessarily very easy. Thank you very much indeed. The no door and well known and having a role in negotiating many of the treaties we're discussing raises a very personal question, and he thanks you again for a very interesting presentation. I would judge talk elaborate on the important difference between the judgments of the German courts and I assume here he's referring to the vice judgment which we refer to and the Polish court. And again, I assume he's referring to the judgment of the 7th of October, constitutional court. There's a problem in doing that because all we know, certainly all I know and so far as I'm aware all anyone outside those directly involved now is a relatively short statement from the Polish court, which gave the answer without going into detail as to the reasoning for the German court gave as it's won't a very detailed and reasoned argument, but you agree with it or not, you can at least clearly follow the reasoning and as I understand it, I don't claim to be an expert in German Constitution as all so I could get this wrong. But as I understand it from having spoken to some German colleagues, essentially, the reasoning of the German court got something like this. And the whole point of constitutions is that they limit the power of both government and parliament. Government and parliament can only operate within the limits of the Constitution. And therefore, neither the parliament in an acting legislation or the government and entering into treaties has the power to break the Constitution. And either side European Union law together for the moment. It would I think be axiomatic in most constitution regimes that if the government entered into a treaty, which the Constitution did permitted to enter into the courts would put properly say that treaty is not binding in whatever way, it might be binding in national law. And the theory behind the German judgment as I understand it is that there were therefore limits to the extent to which the Polish parliament or sorry the German parliament or the German government could as it were override the German Constitution. And that formed the legal basis for the analysis that led to their view that the European Court of Justice got it wrong in approving of the methods adopted for the bond selling by the ECB. Now, whatever you think about the merits of the specific decision, there's a certain logic and at least the principle behind it. Whether the Polish court took a similar line of reasoning or what line of reasoning it took it isn't particularly clear, other than that it asserted that European Union law didn't override the Polish Constitution. So it's not clear whether there's a difference between the two. And I don't know the detail of the extent of any to which the position of Poland within the European Union is recognized in the Polish Constitution, as opposed to in Polish law. And therefore it's very difficult to compare the two. We had a detailed reasoned judgment from the Polish Constitutional Tribunal then we might at least be able to compare them. Okay, thank you very much indeed for that Chief Justice and Kate McCurry, who's the journalist with the press association has posed a question to on a related topic really. And do you think the EU should take stronger action against member states whose courts come to the finding that their constitution is supreme to European Union law. And so that's one question she asks he actually asked to now I understand that proceedings are being brought against Germany, and under article 258 I'm not sure what the position is, in relation to the Polish Constitutional Court judgment. I'd be surprised if that isn't followed up with similar proceedings. So I'm not sure what you could do stronger than that but I leave that question to you. And then the second question she asks is, and do the findings of German and Polish courts water down the supremacy of European Union law. So, should the EU take stronger action against states and read primacy findings of that kind. And secondly, do the findings of German and Polish courts water down the supremacy of European Union law. And the answer to question one is exactly the answer you gave yourself, which is that there are infringement proceedings already in being against Germany. And I think this again brings into focus. One of the key points I was trying to make in response to the first question I posed. Whatever maybe the position in German constitutional law. The law of the European Union. That's what we all signed up to when we joined the European Union. So as a matter of union law, it would appear that Germany is in breach and of course from the perspective of the union, a country encompasses all of its institution. It's not just its court, the government, it's its parliament. So if collectively, the position of a country is in breach of European Union law, then that country is in breach and can be the subject of infringement proceedings and there in being. And as well as we shouldn't prejudge what decision the court of justice will take. I think that certainly has to be the first step. And it does raise this, perhaps a second degree question. Well, let's say the European Court says, yes, that's a breach of European Union law country X is in breach because its courts have done this. What happens next, you're back to the question we had. I'm not, I mean, I recollected this is a very different issue, but it's one that I was personally involved in way back in the 1990s. When I was involved before the European Court of Human Rights in the open door case. And if you remember that case was about the fact that the Irish court relying on the Eighth Amendment had imposed injunctions on agencies like open door and the well woman clinic against giving information and making travel arrangements for women who wished to avail of terminations and mainly in the United Kingdom. And that was the position under the Irish constitution and they would be very hard question. Things didn't develop in the way they did we had the X case, we do somewhat change in public opinion, we had two amendments introduced solve the problem. But you could have a very difficult situation if there is a national constitution that says one thing. But the state of whom that is the Constitution is found to be in breach of European Union law, because of the implementation of that Constitution itself. What's to happen. That's very uncharted water and it, depending on the mechanisms for amending the Constitution, that may not be so easy I mean imagine it happened in our case. Imagine something if we didn't have article G nine and conferring supremacy on the European on European Union law in the Irish Constitution. And we were found to be in breach of European Union law because of something in the Irish Constitution. And the government said or very sorry and we'll try and amend it at the government proposed an amendment to the people say no. What happens then it. You're getting into very difficult territory and I think the underlying reason for it is that the way in which Member States have recognized at a constitutional level. The position of the European Union within their national legal order differs. And no one really thought too much about that before recent times. And I believe that it's not politically feasible to make the kind of amendments that would solve that problem. Sorry, I've forgotten what the second question was. My goodness me I'm afraid I forgot what the second question was myself at this age and, and, oh yes, can the European Union do more to ensure the separation of judicial and political power was that it for. No, it wasn't that was a previous customer second question and this is the second question was do the findings of German and Polish courts water down the supremacy of European Union law. Well, they certainly do from the perspective of the national constitution of those countries. Yes. I mean, as a matter of European Union law, it is clear that a member state is required on the courts of a member state are required to discipline. And that was including national constitutional laws, which conflict with European Union law. An example of that was in the industrial relations field was the answer the court of justice gave to a reference from the Irish courts concerning the vision of the industrial relations commission, where it was effectively required that we take decisions of the Irish Constitution to enable that body to have jurisdiction over a certain category of case. So that's if the clear position as a matter of European Union law. But the hard question is what happens then when national constitutions don't recognize that primacy in a complete way, but it does water it down certain. I think an additional complication, of course, was posed in the German case by the fact that some of the interpretation provided by the German Constitution Court purported to be of articles in the German Constitution which are unamendable, which vendors put in an even extra level of complication of complication there. But indeed, it might well require a referendum in Germany to create a different type of constitution if you were to do that. But that is a problem. Absolutely. Absolutely. Okay, so let me see just looking for further questions there. And yes, we have one from former Irish ambassador to the United Kingdom Bobby McDonough, and he seeks to tempt you he says could you be tempted to say a word about the rule of law in the United Kingdom, for example about the justice secretary indicating that consideration be given to allow to permit the government to override court decisions or the earlier formal announcement of an intention to break international law. Well, probably eight weeks ago when I was Chief Justice, I wouldn't have been tempted, but temptation is harder to resist given my news. And I think I'll at least go a little way along Bobby's temptation. Firstly, I suppose one has to say remains to be seen what measures are actually adopted. I remember having a discussion with senior English judge a few years ago, who said the thought the sort of right leaning press didn't fully realize was that most of the decisions that they didn't like were actually made by judges in London not by judges in Luxembourg, or God judges in Luxembourg, and with the possible exception of the prisoners vote. And that maybe when they found that out. There might be bigger trouble and enemies of the people and the like. I mean, some measures, perhaps, mightn't be a particular problem with the rule of law and reaching international law has always been in a slightly different category to reaching the rule of law per se. But certainly if some of the, how should I describe it more exotic proposals that seem to be coming from some minors in the current regime in the United Kingdom, were to find their way into law. I think they would raise questions. Obviously, the ability to overturn a decision of the courts is not necessarily in itself a problem. It's a problem in property, for example, if the courts interpret a law in a particular way, and the government doesn't like it and can propose validly an amendment to that law, so that it now clearly means something different. There's nothing wrong with that that's what happens all the time. Even occasionally, we have had constitutional amendments that were designed to reverse decisions of the court. Back to the very ones I mentioned, rising out of open door and the like, there were decisions of the Supreme Court as to what the Eighth Amendment meant. There were then further amendments that altered that decision. So that in itself is not a problem. But if you're actually just simply trying to overturn a decision saying we don't like that decision and it is hereby no longer the decision and something else is the decision. It's a fundamental breach of the separation of powers and would be a serious attack on the rule of law. Perhaps even more direct and more direct attack than those which are criticized in some countries where you don't change the decisions but to change the judges in the hope that the new judges will come up with different decisions, but to actually directly change the decisions itself would, I think, be quite a direct attack on the rule of law. Whether they go ultimately go down that route is perhaps another day's work and we will have to see what actually happens rather than what people threaten might happen. One sometimes could be forgiven for thinking that some of this is just plain to a certain constituency, and what will actually manifest itself in real change may not be quite as clear as the rhetoric might suggest. Let's hope those particular dogs park longer than they choose to bite. And we're coming very close to the end at this stage and I must apologize where we're actually getting lots and lots of questions and it's just really not possible to reach all of them but perhaps if I just take this last one as I said with apologies to anyone who hasn't managed to whose question we haven't managed to arrive at and Mary Carolyn of the Irish Times asks whether you have any proposals for how the EU might best address the problem of some national governments engaging in what many regard a serious interference with the independence of their judiciary is and we have two minutes left. I think if there were easy answers to that they would have already been thought of would have been applied. And I go back to the problem with, you know, you can't solve problems with the rule of law by breaking the rule of law yourself. The European institutions have to themselves comply with European Union law in whatever measures they try and adopt, and the absence of their being clear and easily implementable measures and is itself part of the problem. So I don't think there is any easy proposals. If you are engaged in wishful thinking, you might ask for different treaties that might provide for more easily implementable and effective remedies. But I'm not sure that they're there. And I'm not sure in the current climate it'd be possible to put them in. But I did hear one, like the interesting proposal made at a recent conference in Warsaw, and where the speaker who's in terms of judge said that he appreciate this is a kind of a lawyer's answer, but nonetheless, you put it forward. The following could happen. If one country just really won't comply with the rules that all the other countries want to comply with. All of the other countries could serve notice under the treaties to leave the European Union and set up European Union to by themselves and leave the other country by itself in the original European Union. I suspect for about a thousand legal complications in attempting to do that. And I doubt that would be the political will to do it. But I think we're just stuck with the treaty architecture we have. And that does provide some solutions, or perhaps not one switcher's idea as one might like. Okay, well, let's hope in due course these problems go away by themselves perhaps it's a little help from the electorate and the relevant countries but until then, we'll have to wait and see if she's just as this has been a veritable intellectual feast. You've raised really, really important questions. And I have to say I enjoyed the discussion enormously thank you so much for having given up your time to be with us here today. And thank you also to everyone in the audience for for having joined us and to the very many of you who pose questions whether we managed to get to them or not. We look forward to seeing you in the Institute again on some future occasion, and we're delighted to have had you to have had you to have had you here with us today. Thank you very much.