A consensus choice who is determined to be effective, independent (Part 2)

VB: How did your appointment to the High Court in 1979 come about?

DB: Well, I was, I suppose, a senior Fianna Fail barrister at the time and I was approached by the attorney general, Tony Hederman (himself appointed to the Supreme Court in 1981), and asked if I would be interested, and I said I would.

VB: Did you have any reservations about accepting the appointment. DB: No. However, I was shocked when I saw my first month's cheque, which was something like £500. At that stage a High Court salary was £11,000 a year. But I enjoyed being on the High Court very much. I had been at the Bar for 28 years and being a judge meant you had all the interests of the Bar without the hassle. And then, everybody tries to be nice to you.

VB: You're cut off socially from former colleagues at the Bar?

DB: You are, yes. On the other hand, you've plenty of time for your wife and your family. I remember Brian Walsh (former Supreme Court judge, now deceased) saying to me: `You'll find a glass curtain coming down between you and your [former] colleagues'. Sure enough, that came to pass. It is a lonely job all right. The High Court judges are very much on their own.

VB: You were the judge that stopped the ratification of the Single European Act.

DB: That's right. Every country in the EEC, as it then was, had executed the [Single European] Act. To bring the treaty into force, the government had to deposit its signed copy of the treaty with the office of the Italian foreign minister in Rome. Italy held the EEC presidency at the time.

Once that had happened, the treaty was ratified and it would override domestic law. So the plaintiff's [Raymond Crotty's] case was that unless you stopped the government now, it would be too late for him to take the case later.

The result was that at 8.30 on Christmas Eve I issued an interlocutory injunction restraining the government from depositing the treaty. That was a lonely responsibility. The decision was upheld by the Supreme Court and then there was a referendum. The referendum was carried, and I was appointed to the new court set up by that treaty, the European Court of First Instance.

VB: Did you enjoy your 6-1/2 years on that court?

DB: Very much. It was totally different. We were living in a lovely spot in the countryside about 10 kilometres outside the town of Luxembourg. There was not a hectic social scene there but I was in my 60s at that stage and I was quite content to go home at an early hour, or go to the opera, the theatre or something. We loved it. We also greatly enjoyed being able to travel into France and Germany almost at will at weekends and during breaks.

VB: Did you find the civil law system very strange?

DB: Yes. As a barrister here you start off reading all the law for your first cases but then you come to appreciate it is the facts that matter most and the law can be sorted out later, if necessary. In nine out of 10 cases, the facts determine the outcome. But in the European civil law system, they seek the law first and then look to see what facts need to be clarified to ensure that the law is correctly applied.

VB: Do you think theirs is a better system?

DB: I don't think it's a better system, no. I think it's intellectually more demanding in ways but by the time I came to it I had been for 40 years a common lawyer or more, and was, perhaps, set in my ways.

VB: Were you sorry to leave Luxembourg and to come back to the Supreme Court?

DB: No. I had the choice. I'd started my second mandate [period of appointment] and I was only six months into it. The only misgiving I had was that the salary in the European Court was much higher and the tax was much lower but I thought I'd like to come back and finish my career in the Supreme Court here.

VB: Did you enjoy your time in the Supreme Court?

DB: I did, very much so, except that we were under too much pressure. We had too much work to do.

VB: What major cases were you involved with on the Supreme Court?

DB: One that sticks in my mind is the Blasket Island case. The issue there was they divided the inhabitants of the island into two classes, those who traditionally lived on the island and those who were recent arrivals.

Legislation passed by the Oireachtas provided that those who had been there for a long time couldn't have their property confiscated and those who had been there for a short time could. That brought into focus the whole principle of equality before the law. I actually delivered the judgment of the court.

VB: To what extent does the collegiality idea work on the Supreme Court here?

DB: Immediately after the hearing of a case ends, there is a discussion among the judges and everybody gives their initial impression. If somebody has a very strong view at that stage and if the others think it's right, they may say well OK, then you write the judgment.

Then the judgment is circulated and there may be misgivings on the part of some of the judges. They might think that the emphasis is wrong and at that stage, or indeed at the preliminary stage, other judges might decide to write their own judgments.

VB: You were part of the majority on the Supreme Court that upheld the jury award of £300,000 to Proinsias De Rossa against the Sunday Independent. This seemed to many to represent a very serious encroachment on the freedom of the press for it meant that everyone was at the hazard of an award against them which might wipe some of them out.

It had a chilling effect on comment and on reporting, and the judgment of the majority, delivered by the late Liam Hamilton, did not seem to take that adequately into consideration.

DB: That award came at the end of three trials, during which De Rossa was very roughly treated. Also, the defence in that case was, in part, one of justification [the claim that what was published was true], and if you plead that you have to prove it. I think that was a very exceptional case. The accusations were extraordinarily serious and they would have destroyed De Rossa's career.

VB: While you were on the Supreme Court, the O'Flaherty affair broke. Did you have any sense that what happened to him was unfair, that even if you believe he was wrong to have spoken to the relative and friend of Philip Sheedy that he met casually and even if he was wrong to have made inquiries of the registrar of the Circuit Criminal court, it was unfair to subject him to the ultimate judicial disgrace?

DB: I was very sympathetic to Hugh O'Flaherty. I've known him for years. He was a fellow judge, he was likely to have been the chief justice and he is very learned man, but I feel he should not have done what he did.

As the report by Liam Hamilton said, it did damage to the administration of justice. It was the only time that the integrity of the Supreme Court was ever called into question. I must say that I thought Liam Hamilton was right in the decisions he made.

VB: Did you advise Liam Hamilton before the publication of the report?

DB: Well, Liam Hamilton took the advice of the entire court. He showed us the draft, but while Liam bears the main responsibility, we must all bear some for it.

VB: Did anybody dissent from the report?

DB: I'd prefer not to say. The only reason is if I say we were unanimous I am implicating everybody.

VB: Did you contact Hugh O'Flaherty afterwards? You had been friendly with him, you had known him through Fianna Fail, through the Bar. DB: No.

VB: Why not?

DB: I'm not sure that a contact would have been welcome. I think that he was very disappointed that his colleagues did not stand by him and understandably he feels let down by us. The affair was very traumatic for all of us.

VB: The Irish Council for Civil Liberties has been critical of the manner in which you were appointed president of the Commission on Human Rights. They say that you should have been selected by an independent selection committee, not appointed directly by the government. What do you say to that?

DB: The Minister informed me that he had consulted the various parties and other interests in the country and I understood I was a consensus appointment.