Opening remarks by Minister of State Byrne at IIEA Rule of Law event

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I would like to thank the IIEA for the invitation to join this event and indeed for the work you have done in bringing it together in these challenging times.

The Institute has done an excellent job in adapting to the circumstances and I know that a huge amount of work goes on behind the scenes to bring these events together.

I would also like to thank Minister Varga for joining us to expand on Hungary’s position on the rule of law.

The pandemic has given us many challenges. Among the less serious but still important is the reduced frequency of our in-person engagements.

So I am thankful for the opportunity today to have a more in-depth conversation, even if it is still an online one.I hope that I will be able to welcome the Minister to Ireland, in person, in the not-so-distant future.

I would like to briefly make clear the strong bilateral relations between our two countries.

There are around 10,000 Hungarians living in Ireland who make a valuable contribution to our society, our culture and our economy. There are strong and growing trade links between our countries, which our Embassies and state agencies are doing much to improve.

In the context of our shared EU membership, and in a post-COVID 19 recovery and post-Brexit situation, I am sure there are many areas in which we can build on that relationship going forward.

In a world of rapid fire and divisive arguments on social media platforms, it is important to make space for calm, constructive and reasoned discussion in which we can build our understanding of respective positions.

These engagements are particularly important on such an important subject. Rule of law is at the heart of the EU’s functioning and at the centre of current debate both in the EU and beyond.

So I look forward to hearing from Minister Varga and I thank her once again for joining us. I also look forward to hearing from those of you who are joining us online. I appreciate you taking your time today to engage in this discussion.

Today, I hope to provide a detailed explanation of Ireland’s position on the rule of law, particularly at EU level.

I will first look at our understanding of the rule of law, before considering this government’s commitments to it.

To begin, I would like to expand on our understanding of the rule of law.

We sometimes hear that the rule of law is a concept that has no agreed definition, that it is apparently a concept so elusive that it is impossible to be held accountable to it. From the outset, I must be clear that we don’t accept that argument. We do not believe that the rule of law is a nebulous concept. We believe that it is well-understood and well-defined.

We agree with the definition of the rule of law provided by the European Commission. The Commission has stated that under the rule of law, all public powers must always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts.

The Commission’s definition further highlights some of the key principles of the rule of law:

• legality
• legal certainty
• effective judicial protection by independent and impartial courts
• separation of powers
• equality before the law

The Commission is not alone in highlighting these pillars of the rule of law.

The Venice Commission of the Council of Europe has also carried out extensive work in defining the rule of law. This has included the development of a rule of law checklist. The Venice Commission’s checklist also points to pillars such as legality; legal certainty; prevention of abuse or misuse of powers; equality before the law and non-discrimination; and access to justice.

In other-words, under the rule of law, no one is above the rule of law, the law applies equally and fairly to everyone. No one is all-powerful in such a system, there are check and balances, limits and accountability.

So it can be seen clearly that the rule of law protects every one of us.

Successfully implemented, the rule of law protects the rights and liberties of individuals and companies. It provides the legal protections and space for a truly free and open society. Under the rule of law, we are safe-guarded from the consequences of unchecked power and assured that the broader interests of society are kept at the heart of policy making.

The benefits of the rule of law seem so boundless, so obvious, that it can sometimes be difficult to imagine that we would still need to argue for them. It is difficult to think that we would even need to argue for something as simple as limits on power. On these principles, we thought that most were agreed.

But argue we must. We must continue to actively defend the rule of law in Ireland, in the EU, and globally.

Even when we may think that argument has been won, we must continue to promote and protect the rule of law.

The rule of law is not a permanent state of being. Gains that have been made, can be lost. In fact, the losses are often much quicker than the gains. That said, we have been consistently clear, no country is perfect. Ireland is not perfect.

We all have areas that need to be improved, areas where our systems could be strengthened.

As far as the rule of law is concerned, there is always work to be done. That is why our Programme for Government highlighted our support for the EU’s values of cooperation, peace, democracy, human rights, and the rule of law.

The Programme for Government states that we will strongly advocate for democracy and democratic values and the rule of law. These commitments are not new. They are based on existing commitments that we have made as a Member State of the European Union, enshrined in the EU Treaties.

Article 2 of the Treaty on European Union states that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

In Ireland, these values were given the support of the Irish people directly, through referenda. This commitment to the shared values is enshrined in our Constitution. Article 29 of the Constitution states:

That is why Ireland has firmly supported the rule of law as a core value of the European Union and will continue to do so. But respect for the rule of law is also vital for the credibility and functioning of our Union.

The rule of law is the cornerstone supporting mutual trust between Member States, which is vital for the functioning of the EU and the Single Market.

It is therefore very important for the EU to have the necessary tools to monitor the rule of law across Member States and effectively respond to challenges where they arise. In particular, the European Commission, as the guardian of the Treaties, has an important role to play in monitoring and enforcing the rule of law.

When the Commission seeks to hold Member States accountable to the promises that they have made, this is not over-reach or “mission creep”.

This is the Commission’s role and it is a role that we are support fully.

We support the Commission in this role even when it may not be in Ireland’s direct interest, even in those cases when it is Ireland that is challenged by the Commission. Based on this support for the Commission’s role, we welcomed the publication last September of the Commission’s first Annual Rule of Law Report. The report offers a comprehensive overview of the state of the rule of law across the EU, with specific chapters on each Member State.

The Commission did tremendous work last year in delivering the report in spite of the challenges presented by COVID-19, a demonstration of the importance which the Commission places on its duties to the protect the rule of law.

We actively engaged with the Commission in the preparation of the Ireland chapter of the report. We were fairly consulted and we welcome the independent and impartial review of rule of law in Ireland.

Like all Member States, Ireland is certainly open to criticism. Examples of areas that the Commission considers to be of concern in Ireland and outlined in its report include the number of judges in Ireland in comparison to the EU average, and rules on state advertising in media.

These areas of concern highlighted in the report are ones that we will consider and take seriously.

While criticism may sometimes be difficult for Member States to hear and accept, it is important that the Council of the European Union has an objective basis on which to conduct its dialogue on the rule of law across the Member States and the Commission is best placed to provide that objective basis.

As we go forward, we will remain open to dialogue on the rule of law and we encourage our fellow Member States to do the same. We will continue to cooperate with the Commission and contribute to the annual iteration of the report. The Commission’s report has been an important addition to the rule of law “tool-box”.

But we accept that monitoring the rule of law is not enough. As a Union, we need to be able to respond appropriately to challenges that arise.

Of course, we already have infringement procedures, whereby Member States can be challenged before the Court of Justice of the EU on their failure to implement EU law.

These procedures are a fundamentally important element of holding Member States to account. We of course support the continued use of infringement procedures where appropriate and in accordance with the Treaties.

But we have also been open to new initiatives designed to respond to challenges to the rule of law. More recently, Ireland strongly supported the introduction of a strong and effective Rule of Law mechanism to protect the EU Budget.

The new mechanism links access to EU funds to adherence with the rule of law. The agreement reached on this in December last year is an important step towards ensuring that the Union can respond more effectively to internal challenges to values that we have all accepted as Member States.

Once the regime of conditionality is introduced, Ireland will support its fair, proportionate and effective implementation. But it is worth noting that the EU has several other tools at its disposal and there are other ongoing initiatives and procedures of which Ireland is supportive.

This includes the ongoing Article 7 procedures with Hungary and Poland separately. Although I appreciate that this is a challenging topic, it is important the EU Member States speak openly on it. Ireland supports the continuation of Article 7 procedures and we hope that discussions at Council level can continue towards a constructive resolution.

Between EU Member States, there have always been, and I am sure, will always be, disagreements. There will always be frank and even challenging conversations to have. But I am sure that as Member States, we arrive at these conversations with a willingness to find a solution.

The internal challenges that we face, to the rule of law and other areas, can be addressed through dialogue. Events such as today’s, where we have the opportunity to expand on our positions in detail, and better understand each other’s views, form an important part of this process.

I hope that I have shed some light on Ireland’s position and I look forward to our discussion.

Thank you.