AFTER the nonsensical populist legislation purporting to tell barristers what they should not wear on their heads, it is a relief to see the political system at last directing its attention to real issues, such as the organisation of the courts system.
Appointed by the Minister for Justice last November, the speed with which the Courts Commission has reported and the clarity of its analysis of the problems and of the way they should be tackled reflect the quality of the judicial and lay membership of this body.
The reluctance of successive governments to appear to interfere with the judiciary has in the past inhibited action to remedy defects in our courts administration, while the judiciary has lacked the administrative back up to press for the changes needed.
Indeed, the provision for servicing our judiciary is quite extraordinarily inadequate; only the remarkable dedication and patience of our judges, many of them paid a fraction of what they would be earning if they had remained at the Bar, has kept the system going.
As a profession, barristers are much criticised. Some of this arises from the publicity given to the fees earned by a small number of leaders whose services are in huge demand, and more of it represents plain Irish inverted snobbery. As a barrister - non practising for almost half a century since I was called to the Bar - I cannot pretend to be entirely neutral on such issues. But, for what it is worth, I would like to make a few points in favour of both the Irish Bar and our judiciary.
There is criticism of the fact that the education of barristers still includes a feature such as the eating of dinners at Kings Inns; some people also view negatively the Irish tradition of crowding most barristers together in the Law Library, in contrast to the situation in Britain where they work in groups from offices ("chambers"). But it is precisely the esprit de corps sustained by these traditions that has maintained a professional ethic which is enormously valuable, both in itself and in the quality of the judiciary drawn from this profession.
In addition, the camaraderie of the Law Library enables young members of the profession to draw freely on the experience and wisdom of their elders, in accordance with a long standing tradition unique to this profession. Even the recent move of some barristers into offices, which has reflected strains arising from the expansion of the profession as well as a trend towards greater specialisation, has been organised so as to maintain as much as possible of the traditional collegiality of the Irish Bar.
INTANGIBLE factors such as these are too easily dismissed by critics. Because such elements are difficult to quantify, they tend to be ignored. And because they involve old customs which antedate our State, they are dangerously vulnerable to populist attack.
To me, the test of the value of these customs lies in the kind of judicial climate that they eventually generate. If the outcome of the traditional structure of the Bar were an establishment oriented judicial system of the kind which in Britain contributed to the disastrous injustices of the Birmingham and Guildford verdicts, I should have no hesitation in joining in a demand for a radical change.
But the opposite is the case: in marked contrast to the situation in Britain, the whole thrust of our judicial system is libertarian directed towards protecting the rights of the individual, especially against encroachments by the Executive and Legislature. This reflects the traditional independence of the Irish Bar, the members of which, to a much greater extent than in Britain, are for example accustomed to appearing in criminal cases both for the prosecution and the defence.
Repeatedly, our courts strike down, on constitutional grounds, laws or parts of laws enacted by the Oireachtas - finding in them unintended breaches of human rights. And organs of the State, acting in good faith and without repressive intent, are declared to have unwittingly deprived some citizen of a constitutional right.
As a result governments, concerned to minimise such conflicts between law and Constitution, require the regular attendance of the attorney general at their Cabinet meetings, so as to advise them on whether legislation under consideration might be open to being declared unconstitutional. And in seeking to protect their governments against having their legislation overturned, attorneys general are de facto required to act as protectors of citizens' rights.
This is in striking contrast to Britain where, for example, in the absence of any constitutional protection of human rights, the attorney general in the Stalker case interpreted the public interest as requiring him to protect, not the rights of citizens, but rather the interests of the security services.
OF COURSE the libertarian, almost anti establishment, stance of our courts is in the first instance a product of our Constitution, but the generous way in which some of its vaguer human rights provisions have been interpreted by the courts in favour of citizens and against the Executive and Legislature is the product of a tradition nurtured by the Irish Bar and given powerful expression by judges drawn from its ranks.
The result of all this has been to endow our political system with a unique structure of checks and balances. In the first instance the government proposes legislation, subject, however, to the constraint imposed by the practice of accepting the usually cautious advice of the attorney general on anything in the draft legislation that might be held to be unconstitutional.
The Oireachtas then examines the legislation, scrutinising it for defects, including constitutional flaws. Because there are two Houses of the Oireachtas, an inadequate debate in one is usually compensated in the other House; the value of the Seanad as a revising chamber, or occasionally as a forum for the initial debate on Bills it may be better equipped than the Dail to examine, should not be underestimated.
However, the capacity of a parliamentary system to restrain the Executive is, of course, limited by the imposition of the party whip by the government parties - necessary though that undoubtedly is for the orderly conduct of parliamentary business. This is where the courts come in - evaluating the constitutionality of laws passed by the Oireachtas, either when legislation is occasionally referred to it by the President before she signs it or more frequently when some provision of a law is constitutionally challenged by someone adversely affected by it.
There is, moreover, a further check within the system. On occasion a negative interpretation by the courts of the constitutionality of a law might, by preferring one right against another, run counter to the wishes of the people. This happened, for example, when several decades ago a Supreme Court decision invalidated adoptions authorised by persons other than judges and seemed to adoptive parents to raise doubts about the validity of adoptions.
In such a case the Oireachtas can initiate legislation for a constitutional amendment to override the Supreme Court's interpretation, thus giving the electorate an opportunity to make its wishes prevail. This actually happened in 1979 when, (in a referendum in which it has to be said less than 29 per cent of the electorate voted), there was 99 per cent support for an amendment to validate adoptions authorised by persons other than judges.
In this way the ultimate sovereignty of the people vis a vis the courts, as well as the Executive and Legislature, is upheld in the rare case where the electorate may not agree with the courts' interpretation in relation to a conflict of rights. In the other country whose constitution accords a similarly powerful role to the courts vis a vis the Executive and Legislature - the United States - it is theoretically possible for the electorate to overturn a Supreme Court decision with which it disagrees, but this is virtually impossible in practice because in that federation such a reversal would require a positive vote by 36 out of 51 States, rather than a simple majority in a single vote.
Although this may not be generally appreciated, Ireland is almost uniquely well placed in having strong constitutional protection of human rights; a libertarian judiciary concerned to protect these rights vis a vis Executive and Legislature; and checks and balances to ensure that the popular will ultimately prevails - even vis a vis the Courts.