As Chief Justice Ronan Keane retires from the Bench, Edmund Honohan pays tribute to his judgments
It is the primary function of an appellate court to produce consistency in the interpretation and application of the law. The Supreme Court does not hear evidence as to fact: it concerns itself with determining how the law deals with the facts proven in the lower court and with the fairness of the trial.
The judge-made common law apportions blame and benefit to those deserving of same. Where statute produces jarring and unexpected results (as it often does), constitutional law can sometimes ameliorate the harshness. Public law ("judicial review") will correct - though only rarely award damages for - illegalities by statutory agencies. Criminal law punishes the guilty.
Legal principles in all these areas have benefited from the retiring Chief Justice Mr Ronan Keane's rigorous and disciplined analysis in recent years. The new human rights and equality legislation now has well-prepared soil to root and grow.
The track record of an individual chief justice is wholly dependent on the particular caseload which comes up for consideration during his watch. He cannot select areas in which a personal reform agenda may be pursued. Though holder of one of the highest constitutional offices, he cannot be both judge and politician.
To Judge Keane, a man of obvious ability in the many areas in which his textbooks are authoritative (and who had been president of the Law Reform Commission between 1987 and 1992), this practical restraint must have been an irritant. Opportunities to effect real reform were rare. The daily grind is less high profile.
And grind it is. Time and again in his judgments we find Judge Keane painstakingly unravelling impossibly multi-layered legislation, within his own areas of specialisation - company law, trusts, local government - and without, with equal flair.
The workload of the Supreme Court now frequently includes EU law, international conventions and foreign law - all requiring interpretation. In contextualising, Judge Keane always demonstrates his astonishing store of knowledge of the history of law, and we find him often cutting a Gordian knot by grounding his interpretation in the "policy" of the Act and its contemporary circumstances.
And in the knowledge that the legal analysis in his written judgments will be ultimately woven into the seamless fabric of the law, Judge Keane always records the factual background to his decisions and the submissions of the parties. In complex cases, this exercise in itself must have absorbed many hours of work off the bench, but the result is never other than a masterly exercise in factual accuracy (inclusive of nuances). The language is never fanciful or opaque and, even where technical, always accessible.
On reading his written judgments one quickly spots a central theme: the need to return to earlier case law and judicial dicta where the applicable principle is illustrated. There is a collegiality in the body judicial which is clearly efficient and economical. For Judge Keane, the collegiality is to be respected not only amongst current office holders here but also across the decades and the continents. And it's reciprocated: his judgments have been cited in New Zealand, in Canada, and many times in reported UK decisions.
Certainty of law is one of the cornerstones of the judicial construct, that certainty which ensures that the layman, to whose service the law is dedicated, can be confident of consistency in the application of principles pronounced in earlier decisions. Unpredictability causes injustice, broader uncertainty and ultimately a loss of confidence in law and the courts.
The temptation to employ any once-off flexibility must be eschewed - the court has no discretion to do other than interpret and apply the existing law, and that interpretation has to be, in the interests of certainty, restrictive. This must be frustrating, (especially for judges, one imagines), but is, constitutionally speaking, correct.
The law is not a magic wand which, when waved, produces dispute resolution formulae with which all concerned will be happy. Where the law is "bad" - a political assessment, in the final analysis - the court often urges legislators to take action. It is not for the court to change the law where it is clear and certain: the law has to be applied without fear or favour. This flows from the constitutional separation of powers.
But certainty in the law cannot blind the court to injustice. In the face of injustice, what had seemed to be certain may now appear less so - it may be "distinguishable". Although there is usually very little the court can do when the perceived injustice is caused by statutory wording, what if the wording is ambiguous? Or, in another case, what if the common law or constitutional precedent is unclear or its application uncertain? When the opportunity to revisit case law principles (even to overturn some of his own High Court decisions) or to modernise the import of constitutional articles presents itself, it is often greeted with enthusiasm, but sometimes also left ("reserved") for another day and another set of facts.
The search for a just formula will never be arbitrary or populist: it will be informed by principle and constructed to stand the test of time. Hard cases will not be allowed to create bad law. In recent years, some Supreme Court decisions attracted popular approval and some did not: approval was not the object of the exercise.
If there is to be a criticism of this, it is that, in a "hard" case, the confirmation of existing legal principle leaves a sour taste in the mouth of the litigant who feels he has lost out in the broader societal interests of the intact preservation of hitherto accepted principles of law: the law itself has, it appears to him, wrought an injustice to him. The public at large, however, may have been well served by the decision.
The overriding impression from his judgments is that Judge Keane did not often find the existing law to be uncertain. It is hard to fault his cogently argued conclusions. But he was never reluctant to correct and criticise where the law had been misapplied. He was as political and reformist as his constitutional role allowed him to be, but never crossed the line. Within those constraints, however, he has immeasurably deepened and structured our jurisprudence in virtually every area of law.
His definitive judgments will reverberate for decades to come. Read them!
• Edmund Honohan SC is the Master of the High Court.