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Irish law will ‘inevitably’ diverge from UK – Hogan

The British and Irish legal systems will “grow further apart” as a result of Brexit, with divergence inevitable, Mr Justice Gerard Hogan of the Supreme Court has said.

However, Ireland will remain “a fully-fledged and fully-recognised member of the common law family”, the judge said at the Irish embassy in London (3 March).

Mr Justice Hogan said that as the influence of European Court of Justice (CJEU) rulings “wanes” in England and that country departs from retained EU law, the common-law influence in Europe would also be “weakened post-Brexit”.

Cleavages

He predicted inevitable further cleavages between the two jurisdictions in the area of substantive common law, but said that the EU legal tradition was sufficiently diverse to “accommodate and tolerate, and even cherish, a small country from a different legal family”, the Law Society Gazette of England and Wales reports.

Mr Justice Hogan left his role as CJEU Advocate General in October on his appointment to the Irish Supreme Court.

He pointed to a risk that, without England and Wales, “the distinctively common-law nature of the Irish legal system will, in some respects, be crowded out by the sheer dominance of the continentals.

“But more important than the substantive law is the legal method,” Hogan added. “Here, 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’.”

He added his hope for expanded business opportunities for Irish lawyers post-Brexit: “There is a role, I think, for litigation in the English language within the realm of the European Union system,” he added.

Competencies

“Not in a million years are we ever going to compete with London as the chief legal services centre in the world but, at the same time, there are real competences, expertise and knowledge within the Irish legal system,” he said.

Irish ambassador to the UK Adrian O’Neill earlier said that Ireland’s common-law tradition “offers an opportunity to Ireland as the last wholly common-law jurisdiction in the EU to become a bridge between [other common-law] jurisdictions and the EU”.