Outstanding jurist and advocate of social and political change
Donal Barrington obituary: Born February 28th, 1928 – Died January 3rd, 2018
Donal Barrington: achieved a cast-iron reputation as an advocate for whom constitutional rights, particularly when under threat, were of primary concern. Photograph: Cyril Byrne
Donal Barrington was not only one of the best-known and respected jurists of his generation, but a principled advocate of social and political change in an era when taking initiatives in these areas carried many more risks than benefits.
He was born in 1928, and was the only survivor, and the youngest, of the five children of Thomas Barrington from Ennistymon in Co Clare, by then a principal officer in the Department of Agriculture. His mother, Eileen, was a daughter of JK Bracken, who was a monumental sculptor, one of the founders of the GAA, and (by his second wife) also father of Brendan Bracken, later an associate of Winston Churchill and prominent in British political circles.
Donal’s father died when he was aged two: Belvedere College, where he was subsequently a student, waived his fees because of this family tragedy.
His mother, however, studied after her husband’s death to qualify as a health inspector with Dublin Corporation and, with the help of relatives in Co Clare, kept the family together.
He got first-class honours in his BA in law in UCD in 1949, was awarded an LLB in 1951, and an MA (for a thesis on Edmund Burke) in 1953, a year after he had been called to the Bar.
Without any family legal connections, he nonetheless resisted any temptation to play safe for the sake of a career. Five years after joining the Bar, for instance, he was one of the few voices raised against the Catholic boycott of the family of a mixed marriage in Fethard-on-Sea.
His support for this and other causes – many of them involving human rights issues – was probably responsible for the failure of his application for a teaching post in University College Dublin, when that institution was partly governed, from the shadows, by Archbishop John Charles McQuaid and his academic allies.
UCD’s loss, as it turned out, was everyone else’s gain. He was a founder member, and first president, of Tuairim (an Irish think tank) in 1954, which published a seminal pamphlet by him in 1957 on the constitutional aspects of the national question. This work, which had been first published as an article in Studies in the previous year, was the first authoritative exposition of a policy dedicated to achieving Irish unity by consent, which later influenced John Hume and many others.
A brief encounter with representative politics (he was an unsuccessful Seanad candidate in the NUI constituency in the 1961 general election) probably served to confirm the validity of his first choice of career. In the period leading up to his first judicial appointment (to the High Court in 1979) he appeared in a number of significant cases. Not all of them were successful, but in the process he achieved a cast-iron reputation as an advocate for whom constitutional rights, particularly when under threat, were of primary concern.
The cases of this kind he was involved in included the Dunnes Stores case in the 1960s, in which shop assistants were acquitted of charges of conspiracy after two trials, the second of which lasted 39 days, and in which the legal teams for the women also included Hugh O’Flaherty and Paul Carney; the Nicolaou case, involving an unmarried father who unsuccessfully tried to challenge the adoption of his daughter; the McGee case, in which it was ruled that the legal ban on importing contraceptives infringed the constitutional right of a married couple to privacy; and the Wood Quay case, in which his junior counsel was Mary Robinson.
In Byrne v Ireland (1965), in which Barrington represented the plaintiff Kathleen Byrne, the Supreme Court held that an Irish citizen could sue the State, as the blanket immunity the State had until then enjoyed was inconsistent with the personal rights guarantees in the Constitution. “The Byrne case was the legal equivalent of taking the Union Jack down from the mast of the Castle,” Colm Tóibín wrote. “It changed the whole attitude,” Barrington later said. “Once the State became a corporation subject to the law, it changed the whole nature of society.”
His work with Tuairim presaged, and to some extent influenced, the thaw in relationships that resulted in the Lemass/O’Neill meetings in 1965. A later paper on the proposed Council of Ireland in the constitutional context was published in 1973, and he frequently advised both John Hume and Austin Currie on some of the constitutional intricacies of the Northern situation.
It was hardly unexpected that, with this background, he was appointed as first president of the Irish Human Rights Commission when it was created in the wake of the Belfast Agreement, and as the first co-chair of the Joint Committee of the Northern Ireland and the Republic’s Commissions.
By then he had not only served with distinction for almost two decades as a judge of the High Court, but in Europe as the Irish appointee to the Court of First Instance in 1989, and as a member of the Supreme Court, to which he had been appointed in 1996.
He was awarded a PhD honoris causa by the National University in 2009. He is survived by his wife Eileen, who is a daughter of the late Fianna Fáil senator Seán Ó Donnabháin, and who shared his love of opera, and by their children Kathleen, Kevin, Eileen and Brian.