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.

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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.