Outgoing Chief Justice Susan Denham’s valedictory remarks

‘The judiciary has been the Cinderella of the three sisters - the three great organs of State’

File image of outgoing  Chief Justice  Susan Denham  in Dublin. File photograph: Gareth Chaney/Collins

File image of outgoing Chief Justice Susan Denham in Dublin. File photograph: Gareth Chaney/Collins

 

Last formal sitting of the Hon Ms Justice Susan Denham, Chief Justice

Remarks of the Chief Justice

The Supreme Court

July 28th, 2017, 10.00am

Thank you very much indeed for your very kind words, I really appreciate them.

It has been a great honour to be a judge of the High Court and of the Supreme Court.

Much has changed since I joined the bench in 1991.

Shortly after I became a member of the Supreme Court in 1992, I was coming in for conference one morning, only to be met by a waterfall of water in the passage, and chief justice [Thomas] Finlay informing us that “the thatch is leaking”.

Having summoned help to deal with the floods, we moved in to our conference - which was held in front of a turf fire.

The state of our court buildings then reflected the circumstances in which judges worked.

However, I have always been glad that I joined the judiciary when I did. There was a sense that it had remained unchanged for centuries: gossamer glinted through the buildings, procedures and structures. I felt a stepping back in time.

Thus, there was the opening and opportunity to bring about change.

“What’s past is prologue,” as Shakespeare wrote.

The back-story sets the scene, prepares us, and increases our appreciation of the present.

However, the most important work of a judge is to make decisions, and write judgments. They concern issues of great significance to the parties, and often to the wider community and to the State.

In this jurisdiction, the judgments stand without further comment from their authors. So I am not going to give a behind-the-scenes account of “The Brethren”!

I will say, however, how very much I appreciate the support and warm friendship of my colleagues - especially in the last six years.

It has been a great honour to have been a judge and Chief Justice of Ireland - to have the duty to uphold and interpret the Constitution.

The Constitution of Ireland was the first in the common law world to give expressly to the Supreme Court the powerful role of reviewing the constitutionality of legislation, and invalidating legislation which is incompatible with the Constitution. This was a pioneering feature of Bunreacht na hÉireann.

I have said on many occasions that our Constitution was ahead of its time, with five of the 50 articles of the Constitution devoted to the protection of fundamental rights. It was a prescient Constitution.

Ireland remains unique as a common law country, with a written constitution, and being a member of the European Union.

It has been a great honour to be a judge applying the jurisprudence of this State.

Role of women

There has been a great change in the place of women in the courts.

It is remarkable to think that100 years ago, there were no women in law.

Yet, look around us this morning, what a change!

The morning in December in 1992, when I took a seat at the conference table of the Supreme Court, I was very conscious that no women had ever sat at that table before.

I felt that I had with me Ms Gwyneth Bebb, who in 1913 sought to be admitted to the profession of a solicitor, but whose application was refused by the High Court and the Court of Appeal on the grounds that she was not a “person” under the Solicitors’ Act, 1843.

And I thought of Ms Weir Johnson, who, in 1901, wrote a letter to the King’s Inns, asking if a woman could become a member of the Irish Bar, and was informed that “it was not competent for a lady to enter the Inn as a student, or become a member of the Irish Bar”.

And then, after the enactment of the 1919 Sex Disqualification (Removal) Act, we had our first women barristers, Ms Frances Kyle and Ms Averil Deverell.

Certainly the past was very different, and I felt as I sat at the conference table of the Supreme Court that I was on the shoulders of the pioneering women of previous generations.

When I look back to the early 1970s, when I begun practising at the Bar, it seems like: “The past is a foreign country. They do things differently there.”

I was frequently the only female junior counsel litigating in the courts - this was especially noticeable on a busy Monday morning, in a court packed with men, and myself.

When I commenced practising at the Bar in the early 1970s, there was only one woman judge - Judge Eileen Kennedy of the District Court. It was some time before there was another woman judge - Mella Carroll in 1980.

I followed Mella Carroll to the High Court in 1991, at a time when we were still addressed as “my lord”.

However, there has been an immense change. Currently, almost 37 per cent of judges are women.

Indeed, since the appointment of Ms Justice Catherine McGuinness to the Supreme Court in 2000 and Ms Justice Fidelma Macken in 2005, the court has fielded an entirely female panel to hear cases on occasions.

When I was appointed Chief Justice, I got many letters of congratulations.

Of course, many wrote on the fact that I was the first woman Chief Justice in our State.

However, a very significant number were from all over the island, and from emigrants and families of Irish heritage overseas, from the four corners of the world, writing to say how welcome it was to see a person from the Protestant faith as Chief Justice of Ireland.

Court building

Those of us who commenced practice over 40 years ago have memories of working in damp, musty, leaking, mushroom-on-the-walls buildings.

And indeed, of court business being conducted in borrowed dance halls and bars.

However, there has been an immense programme of court building since 1999. All around the State we have new, or restored, court buildings.

The Criminal Courts of Justice is an iconic building. Seven new, or newly-refurbished, courthouses will be open this year.

Such an infrastructural development occurs only with the support of Government, the Department of Justice, the Department of Expenditure and Public Reform, and the expertise of bodies such as the OPW and the National Treasury Management Agency.

It is an example of when the great organs of State: the executive, the judiciary and the legislature, work together to achieve a benefit for the people.

I hope that the proposed Hammond Lane building, with 19 family law courts, two childrens’ courts, and a Supreme Court, proceeds to fruition. For many years, the pressing need for family law courts in Dublin has been apparent.

In spite of the fact that the OPW, under Minister Harris, finally fixed the heating in the Supreme Court area of this building, it is not suitable for the court.

Judges are scattered in rooms in several buildings. Secretaries and judicial assistants and researchers are 10 minutes away in another building.

The Four Courts is a magnificent building, originally for four High Courts, at a time when we were a colony, and our effective Supreme Court was in London.

It is the norm for an independent State to have a specific building, or sufficient part of a building, to house in one area, all together, the judges and staff of the Supreme Court.

While much has been done over the last 18 years on court buildings, the infrastructure for the judiciary itself remains neglected.

The judiciary has been the Cinderella of the three sisters - the three great organs of State: the legislature, the executive and the judiciary.

Many Irish judges have written and spoken on this over the last 20 years.

The situation has now been recognised by the Council of Europe.

In 2014, Greco made five recommendations to Ireland in relation to the judiciary:

1 That a Judicial Council be established.

2 That the system for appointing judges be reviewed.

3 That a special pay and conditions body be established for the judiciary.

4 That a code of conduct for judges be formally established.

5 That a dedicated training institution for judges be established.

The government failed to act on any of these recommendations.

A compliance report in respect of Ireland was published in June 2017.

It was found that, because of the low level of compliance with the recommendations, that Ireland is “globally unsatisfactory”.

Ireland was asked to report on progress on implementing the recommendations as soon as possible, by March 31st, 2018, at the latest.

The lack of this infrastructure for the judiciary, for example, the Judicial Council, which will be a representative body for the judiciary, and include a training committee, a sentencing committee, an ethics committee, a complaints committee etc, illustrates a neglect of the third branch of government - an absence of an institution which is the norm in other democratic states.

This lacuna is so in spite of many years of discussions on the topic. I first discussed the matter with the minister for justice, Nora Owen, in 1997, with the support of Chief Justice [Liam] Hamilton. Chief Justice [Ronan] Keane chaired the committee that recommended a Judicial Council in 2000.

We have been talking about it for the last 20 years, and conferencing on draft Bills since 2000.

I do hope that it will come to fruition.

Band of brothers and sisters

The judiciary in Ireland consists of 163 judges. We are a small band of brothers and sisters.

We have the lowest number of judges per head of population of the 47 Council of Europe states. A recently published report of the Council of Europe’s Commission for the Efficiency of Justice (CEPEJ) highlights that in Ireland there are just three judges per 100,000 inhabitants. On the other hand, for example, in Germany there are 19,323 judges, being 24 judges per 100,000 inhabitants.

In some of the eastern European member states, the number of judges is higher - thus in Poland there are 10,096 judges, being 26 per 100,000 inhabitants.

Consequently, the 163 Irish judges carry a very heavy workload. So, when issues of delay etc are raised, the small number of judges in Ireland, who each carry a heavy workload, is a factor.

We are entering a challenging time for Ireland with Brexit, and its consequences. The courts will have many problems to solve in the litigation which will arise. And the judges will not falter.

It was clear, as we went through the recent great recession, that the courts worked extremely hard, and coped with the fallout, including the personal financial tragedies daily before the judges, the crucial treaty issues, etc.

The judges worked through the very difficult time, maintaining the rule of law, as the patriots they are.

As Lord Atkin has said on the impartial administration of justice: “I have often thought it is like oxygen in the air; [the public] know and care nothing about it until it is withdrawn.”

The judiciary of Ireland is regarded very highly at international level.

The Council of Europe, Greco, noted in its fourth evaluation report that: “Judges in Ireland have for a very long time been much respected for a high degree of independence and integrity and therefore a very high degree of trust from the public.”

The EU Justice Scoreboard 2017 shows that perception of judicial independence by the general public in Ireland is ranked sixth out of the 28 EU countries, after Denmark, Finland, Austria, Germany, and the Netherlands.

In respect of businesses’ perception of judicial independence, the World Economic Forum’s 2016 to 2017 Report on Global Competitiveness ranked Ireland third out of the 28 EU states, and sixth out of 138 countries examined, under the category of “judicial independence”, after Finland, New Zealand, Norway, Switzerland and Sweden.

So, our judiciary are very well regarded, and recognised for their integrity and independence, a critical factor for the wellbeing of our State internally, and for our position as an open, trading nation.

Role of media

I would like to thank the journalists who have reported on the work of the Supreme Court during my tenure as a judge of the court, and as Chief Justice.

For the rule of law to flourish in a democracy, an understanding and knowledge of what happens in our court is required. We live in a state where justice is administered in public, but it is not possible, in a busy world, for a great number of people to sit in on court cases.

It is therefore vital that the public be kept informed of court proceedings by the media.

The journalists reporting on Supreme Court cases are to be commended for their excellent reporting, often within a matter of minutes after the delivery of judgments, on the complex matters of law dealt with in this court.

I would like to thank my colleagues for their warm friendship and support, especially in the last six years.

I would like to express my thanks to my secretaries over the last 26 years: Mary Hennessy, Ciara Cunningham, Tina Crowther, and Carol Kelly.

They undertook the usual secretarial work for a judge and, in addition, typed out reports (several times!), and dealt with numerous letters and other correspondence and services relating to reform of the court process.

I have very fond memories of the 20 years I have worked with the staff of the Courts Service - many of whom have soldiered with me since we planned the service.

I have had many excellent researchers and judicial assistants - some now senior counsel, or partners in law firms at home and abroad.

My executive legal officers - Richard McNamara and Sarah-Rose Murphy, have shouldered very heavy burdens with great skill and dedication, dealing with matters at home and across the European Union. I am very grateful to them.

And, of course, my family, especially Brian, for their loving support, and for putting up with my long hours of work.

In conclusion, I have enjoyed the honour and privilege of being a judge of this State.

While I have been a judge for 26 years, the time has flown. A “sidelong glimpse of something flying past”.

So, for the final time, following in the steps of Yeats: “I will arise and go now…”