Sunday 16 June 2019

The judges matter more than the ministers

Though the Cabinet reshuffle may have drawn most of the headlines, in terms of real change the court appointments will influence our lives more, says John Drennan

Though the Cabinet reshuffle may have drawn most of the headlines, in terms of real change the court appointments will influence our lives more, says John Drennan

THE Cabinet reshuffle may have got most of the headlines. However, its impact on Irish life calls to mind the tale of the peasant who asked Daniel O'Connell, ``Will we get the Catholic Emancipation, sor?''

O'Connell's response of ``It won't matter a damn to you, my good man; you'll still be breaking stones on the side of the road'' is probably as accurate an analysis of the consequences of Bertie's shuffle.

In terms of real change the composition of the new Supreme Court is far more relevant. The role of the court is one of the best kept secrets in Irish life, though since our fratricidal abortion debates this has become clearer.

Despite the claims that the transfer of powers from the Oireachtas to the courts has mostly occurred in the last decade, the theory of natural law that the individual has inalienable rights which do not necessarily need to be enumerated by law but can be defined by the courts has seen the Supreme Court shape the evolution of Irish society in areas as diverse as personal contraception and the right to information, for several decades.

The new Supreme Court is expected to play a key role in areas as diverse as the powers of tribunals, family law, the rights of fathers, e-commerce, the Internet, the environment, and personal liberty with particular reference to the bail laws.

The last decade has seen some radical changes in the nature of the court. The transformation can be traced from the Norris case in 1983, where the Supreme Court opposed the legalisation of homosexuality on the grounds that it was inimical to marriage and harmful as an institution. As late as 1986 the court ruled that the right to life superseded the right to information and referral on abortion.

In 1992 a sea change occurred. The decision in the X case that a suicidal woman did have the right to information and travel saw the beginning of the collapse of the natural law theory of ``inalienable rights'' and its replacement by the theory of ``prevailing ideas''. That move really escalated after 1997 when the court ruled in favour of of Michael Noonan's Abortion Information Bill. For conservatives that was the moment when ``the walls came down''.

Since then the Supreme Court has ruled in favour of the rights of a family to switch off the life support machine of a patient on the grounds of ``quality of life'' and against the rights of the parents in the C case to influence their child's decision to have an abortion or to provide her with a priest. Such decisions would never have been made if the theory of natural law still prevailed.

The appointment of Ronan Keane as Chief Justice and those of Adrian Hardiman and Catherine McGuinness to the Supreme Court is expected to continue this process.

Keane has a reputation as a reforming figure. During his time on the Law Reform Commission he noted that it was expected such a commission should be controversial. He has visited all the country's jails to familiarise himself with conditions in them and believes justice delayed is justice denied. His judgements on the freedom of the press to act as the eyes and ears of the court, and striking down of the Aliens Act, have also marked him out as a temperate liberal.

Because Catherine McGuinness has spent so much time in the family law courts, the proceedings of which are sub judice, she is seen as a darker horse. However, her pedigree as a former Labour Party worker and member of the Council for the Status of Women not to mention her status as a woman and a Protestant means she also is seen as a liberal.

Adrian Hardiman is perceived as one of the clearest-thinking minds within the Law Library. His status as a defender of individual liberties exemplified by his devastating victory over the Flood Tribunal when representing Liam Lawlor, and role in the Anti-Amendment campaign of 1983 allied to his representation of the Well Women Centre in the early 1990s provides his liberal spurs.

Though none of the new members will bring their politics into their legal role the anticipation is that the new members will take a far more progressive attitude in areas such as the environment and civil liberties.

It is expected that in particular they will take a far more sceptical attitude to police requests which affect the rights of individuals. This may be particularly influential in areas such as any attack on the right to silence and bail.

Already they are attracting terms like practical, creative and progressive. If true it suggests the new Supremes may disturb the equanimity of more vested interests than the pro-life movement.

Adrian Hardiman

AT A Christmas party in the offices of the successful Dublin solicitor Ivor Fitzpatrick, two rather inebriated journalists decided, in the spirit of the occasion, to ``have a go'' at the senior counsel Adrian Hardiman, who was last week appointed to the Supreme Court.

It was over an hour later that the diminutive Hardiman, dressed in a grey suit and pulling vigorously on his trademark cigarette, finally disentangled himself, after giving as good as he got. He can't resist a good argument and after rarefied debate with `M' Luds' in the Round Hall of the Four Courts he occasionally likes to get down in the mud and trade insults.

Hardiman will certainly invigorate the Supreme Court. He becomes the first judge since Hugh O'Flaherty to be elevated straight from the Bar and while he will take a huge drop in earnings for his £90,525 per annum seat on the Supreme Court, he will relish his new role, which involves probing and arguing the merits of landmark cases with the other judges on the bench.

He was called to the Bar in 1974, the same year he married Yvonne Murphy, a fellow barrister. They were a very political couple, he a Fianna Fáil activist (and Progressive Democrat founder), she an advisor to the then Tánaiste and Labour Party leader, Michael O'Leary. Ironically all three are now judges, O'Leary in the Dublin District Court, Murphy in the Circuit Court and now Hardiman in the Supreme Court.

The aspect of his life that will probably change most as a result of his elevation is the social side. Gregarious and outgoing, he is a regular fixture on the Saturday axis of The Unicorn restaurant, Doheny & Nesbitt's pub and The Horseshoe Bar of the Shelbourne Hotel, where he keeps the company of politicians such as Pat Rabbitte and Mary Harney, a coterie of spin-doctors and their wealthy benefactors, lawyerly friends and even a few journalists.

At the time of the Beef Tribunal, Hardiman was involved in a celebrated late night incident at the Shelbourne Hotel with his friend Gerry Danaher.

Hardiman was representing Dessie O'Malley at Dublin Castle while Danaher, who was close to former Taoiseach Albert Reynolds through his father-in-law Peter Hanley, was on the state's legal team.

Hardiman believed he had been threatened by Danaher and, although Hardiman subsequently played down the incident by suggesting Danaher's comments had been made ``in drink'', the fall-out saw Danaher stepping down from the tribunal.

Hardiman gets the credit for bringing down that Fianna Fáil/Progressive Democrat ``temporary little arrangement'' by asking Albert Reynolds whether Dessie O'Malley was ``merely incorrect or dishonest''. Mr Reynolds replied: ``dishonest'' and the government fell. In fact, Mr Reynolds had already said this, and it was the repetition which brought down the government.

Hardiman is a `guarantor' of the PDs, contributing £10,000 a year to their finances, along with a number of other prominent people, among them the current Attorney General Michael McDowell, who is also a great personal friend.

So why would a 49-year-old barrister, at the peak of his career, with earnings of up to half a million pounds a year opt for the rarefied atmosphere of the Supreme Court and the possibility of 21 years of listening to important but probably tedious legal arguments? Did he look at the political arithmetic and conclude that this was the only chance he was going to get, or has he simply opted for a socially quieter, but intellectually challenging life? Time will tell.

LC Ronan Keane

COMMUTERS on the 9am suburban train to Tara Street in Dublin will miss Judge Ronan Keane. They might not have known who the tall man with the London Times under his arm was, but for those who did, it was nice to think that a senior member of the judiciary had this brief window into the real world.

Later he would stride up the quays on his way to the Four Courts, dressed in his black Crombie coat, invariably alone. When he takes up his £113,429 appointment as Chief Justice, Ronan Keane will be obliged to forsake the DART to become the only member of the judiciary with a state Mercedes and driver, one of the perks of reaching the highest law office in the land.

His legal career is well-known, but it is a tribute to Taoiseach Bertie Ahern that when it came to choosing the Chief Justice he went for the best man, as it appears that Keane has no political affiliations. More importantly, the Taoiseach and Government disregarded the inevitable consequences of the link between the new Chief Justice and his wife with whom he no longer lives, the newspaper columnist Terry Keane.

Many profile-writers and commentators have said Judge Keane was elevated to the High Court in 1979 by Charles Haughey's government. This is wishful thinking, although the two men's names are inextricably linked through the aforementioned Terry. It was under the government of Jack Lynch that Ronan Keane became a judge.

The intensely private Judge Keane has been dogged by the public pronouncements of Terry Keane statements which paint a picture absolutely at variance with legal professionals' perception of Judge Keane as a man who reached the top entirely on his own merits.

In a particularly bizarre newspaper claim, Terry Keane even alleged that she had used her influence with Charles Haughey to have her husband appointed to the bench. This has been entirely refuted by members of the Lynch Cabinet who decided on Judge Keane's elevation.

For 20 years Judge Keane has given distinguished service to the state. Born in Dublin in 1932, the son of the City Manager, he was educated in Blackrock College, UCD and the Kings Inns. He presided over the Stardust Tribunal before becoming President of the Law Reform Commission until 1992. He was appointed to the Supreme Court during the Rainbow Coalition government.

The new Chief Justice lives in Monkstown, Co Dublin and has one son, Tim and two daughters, Madeleine, a journalist and Justine, who is married to celebrity gardener Diarmuid Gavin.


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