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GAZETTE
OCTOBER 1989
Judging the world
Interview with Brian Walsh
Justice, Supreme Court; Judge, European Court of
Human Rights.
The following is the text of an
interview with the Hon. IS/lr. Justice
Brian Walsh, Judge, European
Court of Human Rights, which was
published in a book entitled
Judging the World: Law and Politics
in the World's leading Courts
by
Gary Sturgess and Philip Chubb,
published by Butterworths in 1988.
It is reprinted with kind permission
of the publishers.
Interviewer
What was the basis of your
being selected to serve on the
Irish court?
Brian Walsh
When the Prime Minister offered
me the appointment he said he
would just like to mention one thing
- he would never again refer to it -
but he said he would like the
Supreme Court to become more
like the United States Supreme
Court. So I pointed out to him there
were certain differences. But that
was his general idea. I understand,
from what I learned subsequently,
that he said much the same thing
to the new Chief Justice, who was
appointed the same day. That was
the late Cearbhall O Dalaigh.
Obviously it was t he Prime
Minister's wish that the court
should be more active in its
interpretative role. It was put very
briefly but quite clearly. I am not
saying that necessarily influenced
me in any particular way, because
I think the horse was chosen for the
course. He probably felt he was
taking to somebody who had much
the same views. I certainly was
very much influenced by the
American experience. I had studied
it to a very considerable extent and
kept myself familiar with it all
through my career.
You were very young, forty-two.
Why did you accept the appoint-
ment?
I had been a very active practitioner
but I was also very interested in
law. I thought I would like to be in
the position of being able to decide
the legal issues without having to
fight for one particular side of it. So
it put me in a position where I could
make a more objective contribution
towards the development of law,
particularly constitutional law,
which was a particular interest of
mine.
What happened in the partner-
ship between you and the Chief
Justice?
No t h i ng t hat was designed
happened. It was just that each of
us had this particular outlook and,
as we constituted two-fifths of the
court and the others were not un-
sympathetic to our point of view, it
was a question of making the
running. And in most cases the
other judges, or most of them,
would agree. It was really a case of
what I might call a newer and
younger generation of judges
coming in. To that extent the judges
were probably more forward-looking
in the field of constitutional de-
velopment, in giving life to a
Constitution which, in the early
days perhaps, had been regarded
as an o r nament rather t han
something of actual practical utility.
From 1961 onwards the Consti-
tution became very much part of
life and its impact could be felt
among the ordinary people, who
suddenly became conscious of the
fact that they had a Constitution,
that it could be implemented and
that, in fact, many parts of it were
self-executing and did not require
any supporting legislation. The
consciousness of this suddenly
burst upon the public and it just
happened to be that, in the years
commencing around about 1960-
61, the court, for a variety of
reasons, became very active. The
most important reason was that it
got the cases. The court is not self-
starting and depends on cases. So
it was a happy coincidence of the
right cases coming along at a time
when the court was most receptive
to new ideas.
The court may not be self-
starting, but in cases which may
have little relevance to the
Constitution you can still
develop the constitutional law
by focusing on what may be
peripheral issues and then
bringing them to the centre. Do
you agree?
Yes, that can be done. To use
modern parlance, one can put
\
Brian Walsh.
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