Remarks at the Law Society Annual Dinner
13th July 2012
Dia dhíbh, a chairde go léir. Tá mé iontach sásta bheith anseo libh anocht. Bhí áthas an domhain orm cuireadh a fháil don dinneár bliantúil seo. Táim thar a bheith buíoch don Uasal Donald Binchy, Uachtarán ar Dlí-Chumann na hÉireann deis a thabhairt dom labhairt libh tráthnóna inniu.
[Good evening everybody and thank you for your warm welcome to this annual dinner, which I am pleased to attend as your guest. I am grateful to Donald Binchy, President of the Law Society, for extending the kind invitation to speak to you all this evening. ]
When I was inaugurated as President of Ireland I stated that I would seek to promote an inclusive citizenship where every citizen participates and everyone is treated with respect. The active, inclusive citizenship of which I spoke and the equitable application of the law are inextricably linked.
While our Constitution underpins the rights and laws for every person; we all collectively rely on the men and women who teach, shape, practice and administer the law to ensure that it is applied justly and for the good of all the people. Legal practitioners of whatever kind are public interest lawyers and they belong, by virtue of such public service, to a global community of human rights defenders.
That global community continues to provide leaders in the development of human rights and legal theory sometimes in conditions of stability but also in areas where the struggle for democracy and freedom is ongoing, and in such circumstances they are usually in the front line. Over many years as a politician, and an academic with an interest and involvement in the promotion of human rights, I saw at first hand the risks that had to be faced by advocates for justice to advance the development of laws and policies. Laws and policies that endeavoured to place vulnerable groups and other minorities on an equal footing, as participants in society, with those more powerful, and with those who have more ready access to resources.
The slow but steady improvements which we in Ireland have witnessed in this regard have occurred as human rights principles and values have come to increasingly inform and influence our national political and legal discourse. We must, I suggest, hold fast to and seek to extend that forward movement, and continue to build upon it, if we are to achieve a truly inclusive society. A policy of assisted citizenship, for example, has been suggested as a potential significant advance in the provision of their rights for those with disability and is so worthy of support.
I wish then to congratulate all those legal practitioners who have been to the forefront of the rights debate at home and abroad. Indeed I am well aware of the contribution of so many of those it is a privilege to have known, some in places far from the media who have paid with their lives, and I am aware too of the many who, as I speak, are incarcerated for their work. Lawyers are often primary targets for oppression. Indeed in one location I visited some years ago the humiliation and abuse of their lawyer was a key principle of intimidation widely in use by the authoritarian and anti-democratic regime in power.
I recall very clearly a prisoner’s account of their lawyer being dragged in front of their prison cell with the remark – “Now look at your lawyer”.
At the most general level of society at home and abroad the need to actively combat prejudice and discrimination while promoting equality, integration and inclusion remains acute and law practitioners of all fields have a role to play in the promotion of such equality, which, in my view, is fundamentally connected to the achievement of justice.
Turning to some issues of process then, the delivery of legislation and the achievement of the fullness of the possibility of law reform also requires a significant change in administrative changes. An advocacy that stops at legislation is clearly insufficient. Advocacy has to address the reality that the negation of a legislative advance by a negative or ritualistic administrative practice not only is possible, but the evidence is there that it has happened again and again.
In present circumstances as our citizens try to cope with the severe impact of the recent and current ongoing economic downturn, issues of accountability for the failures that occurred, even perceived impunity are understandably at the centre of public debate, are a source of their righteous anger.
If we are to make our way out of economic retrenchment, and I have no doubt as to our capacity to do so, we need to craft a better and fairer society for all our citizens, one that can again engender trust, a trust that has been squandered in so many ways in so many areas of life. The economic recovery that we hope for cannot be about simply rewinding the tape to the days of the so called Celtic Tiger. Its concentration must be on creating an economy that, as well as being efficient and competitive, is sustainable, operates on ethical principles and allows all our citizens to fairly participate in its prosperity.
The failure to deliver vigilance on behalf of citizens, on the part of persons and institutions in whom trust had been placed, has had devastating consequences and is, as I have suggested, a source of righteous anger among the public. The building of trust in institutions is urgent but has to take place in a context that recognises those areas where comprehensive damage has been inflicted by institutions not only on themselves but on the public.
The crisis in the financial system was not just a technical failure, or the failure of regulation. The problem was also an intellectual one; certain assumptions about economic models were allowed to constitute an orthodoxy that went unchallenged – even in the face of empirical evidence that a speculation-based boom was unsustainable and would inevitably lead to bust.
I was a legislator in that period when the mantra of ‘regulation with a light touch’ was a central paragraph in the prepared and approved speeches of those who were key decision makers and opinion leaders. The tragedy of so many professions, accounting, auditing, law, civil, state, and even clerical is that a philosophy of ‘regulation with a light touch’ became a slide towards a practice with a laxity on ethics.
The ethical problem is a serious one, an aggressively speculative model aimed at maximising short-term profits which may have been legally compliant, but at some distance from being morally justifiable or socially sustainable prevailed. That gap has to be closed, cannot be ignored, if we are to have the ethos of a Republic of which we can be proud.
Among the public I meet every day there is encouraging evidence that the core values of solidarity and community are being rediscovered and that in many parts of our society, in diverse ways, a road to recovery is being guided by a more ethical perspective – one that is informed, to paraphrase Abraham Lincoln, ‘by the better angels of our being’.
I know, of course, that you are all very conscious of the important ethical contribution that the vast members of the legal profession make week in and week out to upholding standards of probity and integrity in the field of law, and that you are also aware of the important contribution that ethics and concepts of social justice have to make to a renewed and transformed Ireland.
You will regret, as I do, that our citizens have lost trust not only in institutions in general, but in particular, trust in the self-regulating professions, including the legal profession – on whom a deep respect had lodged over generations.
If we are not to repeat the mistakes of the past and if we are to ensure that the economy we are now trying to build is just and sustainable, then we need to encourage a learning culture to prevail – including in the formation of the professions – where these moral, intellectual and ethical dimensions receive adequate attention; where students are encouraged to think critically, to challenge the prevailing orthodoxies and to ask the awkward questions; where the professionals of the future do not fall victim to the prevailing norms of the moment but maintain their capacity to think critically, and be moved to evaluate the integrity and value of the work they do.
Preparation for a life in the field of law must be preparation for citizenship, where legal skills have a valuable contribution to make to active citizenship, in the full realisation that it is possible to be modern and ethical at the same time and that a modernity of lifestyle or consumption without ethics or social commitment is hollow.
These are also times of great change and transformation for the legal profession as it faces legal and other regulatory reforms. The issue of the law and its reform is however far more fundamental than establishing where we are in terms of the historical evolution of legal systems or the precise form of their governance arrangements.
As Mrs. Justice Catherine McGuinness, former President of the Law Reform Commission of Ireland, put it succinctly in her Foreword to the Commission’s Third Programme of Law Reform 2008-2014:
“It goes without saying that the law has a significant impact on all our lives and, as our society changes, it is necessary for our laws to respond to these changes.”
In this connection I feel I should commend our own Law Reform Commission for its excellent work on statute law restatement and the legislation directory which, as a former legislator and now as President, I find invaluable, restating and codifying laws also makes the law more accessible to citizens. This ought to be an enduring value in the promotion of the Rule of Law.
It has been my privilege to know many lawyers as students, colleagues and many as valued friends and I know that the truly committed lawyer will be equal to the challenges I have mentioned as well as the challenge that the Universal Declaration of Human Rights poses – to be a courageous champion of a rule of law that never loses sight of the individual as she or he struggles to cope with a changing and increasingly complex world; the less committed may be content to be a passive cog in an already established apparatus – indifferent to its imperfections and to the noble purpose that must be at the heart of the law.
Committed lawyers understand that learning about the law does not cease upon graduation from law school and does not rely on fighting cases purely on well trodden procedural grounds. He or she will constantly study, and stay aware of, the law as it evolves and absorb the learning from court decisions to best serve the interests of our fellow citizens. A committed lawyer must, in short, be unafraid. She or he must be independent in their practice of the law, but never be tardy when there is a choice to be made between defending the rights of others and looking the other way.
It is important to hold on to the certainty that was the contribution of law to the end of absolutism reform need not be at the cost of principle.
In Robert Bolt’s ‘A Man For All Seasons’ Thomas More utters in reply to his impatient son-in-law
“I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester.”
There are many very different from the circumstances or crisis of Thomas More in recent times who are, I say thankfully, finding little shelter in such protection as the thickets offer.
Finally, when we think of law we tend to think of the courts, of contentious problems with imposed solutions; we tend to think of winners and losers. But more and more now, serious efforts are being made to resolve legal problems through mediation and arbitration.
While this is a very welcome development, there will always be situations, conflicts and issues which can only be settled formally, within a court room setting. We cannot, therefore, ever overstate the importance of a just, impartial and even-handed legal system as a fundamental cornerstone of a society based on human rights and equality.
Yours is a profession that serves those for whom human rights are not abstract concepts; they are at the heart of work and of your daily engagement with those whom you serve; yours is a profession whose contribution to our society and national recovery will be essential in shaping our future in the crucial years ahead.
Baineann tábhacht faoi leith le gairm beatha an dlíodóra. Cosnaítear cearta agus comhionannas an duine de réir dlí na tíre seo. Mar sin is tábhachtach an nasc idir an gairm dlíthiúil agus feabhsú leanúnach an tsochaí dhaonlathaí ar an oileán seo.
[Yours is a profession that remains fundamental to the vindication of the rights of individuals and equality before the law in a democratic society which we continually seek to perfect on this island.]
I thank you again for your very kind welcome and for allowing me to share this occasion with you. I wish you all success in the future as you continue to make your important contribution to ensuring that all our citizens live and work in a fair and equal society.
Go raibh míle maith agaibh go léir.