Some Reflections on the Independence of the Judiciary in Ireland in 21st Century Europe

Author:The Hon Mr Justice Donal O'Donnell
Position:Judge of the Supreme Court of Ireland
Pages:5-39
2016 Mr Justice Donal O’Donnell and Dublin University Law Society
SOME REFLECTIONS ON THE INDEPENDENCE OF
THE JUDICIARY IN IRELAND IN
21ST CENTURY EUROPE
THE HON MR JUSTICE DONAL O’DONNELL*
It is an honour to deliver this lecture in memory of Brian Lenihan who was
first a student and then a law teacher in this university, a successful
practitioner, and of course a leading politician. This lecture series has
accordingly sought to address those areas of intersection between law and
public affairs which reflected Brian Lenihan’s broad range of talents, and I
will attempt to do so this evening in considering three aspects of the
independence of the judiciary in the Irish constitutional system.
It is, I think, worth reflecting at the outset on why Brian Lenihan is
remembered so affectionately and why, for example, this lecture series was
inaugurated in his honour in this university. There is, I think, a paradox that
despite his successful careers in law and politics spanning over three
decades, his public reputation now rests almost entirely on his period as
Minister for Finance between 2008 and 2011. The paradox is that that period
coincided with the worst economic crisis the country has endured. The crisis
which overwhelmed the country and the governmental and administrative
system at the time was entirely financial and economic. Brian Lenihan, as
Minister for Finance, was not only the most public figure associated with
the torrent of bad economic news, but also was obliged to introduce some
of the harshest budgets in the history of the State and certainly in modern
times, and ultimately became the first Irish Minister for Finance forced to
seek a bailout from the IMF, ECB and European Union. Thus, it might have
been thought that Brian Lenihan’s reputation would have suffered more than
most. After all, the reaction to these matters was at the time extreme, highly
personalised and apocalyptic. Yet Brian Lenihan earned some grudging
respect and real affection. Part of this was no doubt due to his willingness
to explain decisions and to meet criticism head on with a quick and lively
intelligence. But it was clear that he, together with the advisors and officials
within the Department of Finance, sought to make decisions in the national
* Judge of the Supreme Court of Ireland. This article is an edited version of the Brian Lenihan
Memorial Address delivered at the Trinity College Dublin Law Student Colloquium on 20
February 2016.
Trinity College Law Review [Vol 19
6
interest. Furthermore, he was palpably willing to consider any proposal or
solution on its merits from any source, and without regard to its political
consequences. I think he also understood that while politics in the modern
era is media driven and increasingly rewards simplification, that there were
sometimes complex questions which required complex, subtle and careful
answers. In those difficult days, it appeared that we had learnt the lesson
that you cannot rely on good luck and some well disposed individuals to
keep the ship of the State afloat: that it is critical to address questions of
structure, which will function both in good times and, more importantly,
when the system comes under stress. I would like to think that the topic
which I am going to discuss tonight is something that would have engaged
his attention and would have benefitted considerably from his knowledge of
the law both from a practical and academic perspective, and his experience
of governmental affairs.
I am conscious that the topic of the independence of the judiciary is
not one to set even the most diligent student’s heart racing. It is a topic
favoured by judges hardly surprising but rarely by students,
practitioners, or academic lawyers. It has generated a lot of speeches, which,
if not simply worthy and dull, verge on the self-congratulatory and
pompous. It would not be surprising if the independent minded student
reacted a little cynically or at least sceptically. But I am convinced that it is
a topic that is of real importance to our constitutional architecture and the
functioning of our system, that the structure deserves our attention.
I.!Some History
The history of Ireland, particularly in its relations with the United Kingdom,
is full of misfortune, misunderstanding and wrong turnings. The Treaty
negotiations of 1922, and the split in the national movement that followed
it, have blighted Irish life, public and private, for a large part of the 20th
century at least. But one thing, perversely, which we have those negotiations
to thank for is a written constitution. In 1922, the constitutional orthodoxy
in the United Kingdom, which then included Ireland, was almost uniformly
Diceyan. Indeed, A.V. Dicey’s ground-breaking works on the British
Constitution1 gained much attention in the context of Irish Home Rule and
was much cited in the debates. One of the proud boasts of the British
Constitution at that time was that it was essentially a matter of convention
1 AV Dicey, An Introduction to the Study of the Law of the Constitution (London, 1885). Dicey
was, of course, the most prominent intellectual opponent to Home Rule.
2016] Some Reflections on the Independence of the Judiciary!
7
and not law. It was “flexible” rather than “rigid,”2 and at the time this was
seen as one of its considerable benefits. In time we came to compare a
flexible Constitution unfavourably with a rigid constitution enforceable in
court. After all the strength of a constitution is that it is immutable, without
the approval of the people. But the two are not mutually exclusive, and there
may be a place for conventions to provide an area of added “soft law”
protection for, and enhancement, of specific constitutional provisions.
The Treaty settlement involved the drafting of a new “rigid”
constitution for the Irish Free State and therefore one which would be
enforceable in court. The British side needed a constitution to entrench in
Irish law the Treaty provisions and guarantees especially related to property,
religious freedom, and other liberties of a British subject. The Irish side, for
its part, was keen to produce a constitution which would be a public
expression of the extensive self governance that had been secured. Michael
Collins wrote to the committee selected to draft the new constitution that
“[i]t is a question of status and we want definitely to define and produce a
true democratic constitution. You are to bear in mind not the legalities of
the past but the practicalities of the future.” The result was for once a happy
coincidence of interests in a constitution creating a separation of powers and
in particular providing for the novelty of judicial review of legislation.
It is important to understand the Irish constitutional settlements of
1922 and 1937 by setting them against the position that existed in law in the
United Kingdom at those times, to identify both similarities and differences.
It is also important, however, to be aware that not only were there
differences in the subsequent developments in each jurisdiction, but that
within each jurisdiction proceedings were always, if sometimes
imperceptibly, in a state of flux, and that developments in each jurisdiction
might have been at different points of the cycle.
The 1922 Constitution was quite an elaborate compromise. This is
most obvious, perhaps, from the fact that it presents different legal
perspectives depending on the country from which it is viewed. From the
British perspective, it was an Act of the Imperial Parliament. From the Irish
perspective, it is stated to be adopted by a “constituent assembly” which
acknowledges that all lawful authority comes from God to the people, and
is enacted “in the exercise of undoubted right.” Article 2 of the Constitution,
in terms similar to Article 6 of the 1937 Constitution, refers to “all powers
of government and all authority legislative, executive and judicial,” which
2 A usage coined by Dicey’s friend, Sir James Bryce, who was, however, a leading Liberal
proponent of Home Rule.

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