It is unusual, outside of court, for a senior and experienced judge to express critical views of the decisions of colleagues. Such a judge, the late Mr Justice Seán O'Leary of the High Court, knowing that he was mortally ill and, as chairman of the Residential Institutions Redress Board without a public court in which to make a valedictory address, may have taken an unprecedented step in leaving a "statement" on the administration of justice for publication contemporaneously with his death. His views, published posthumously in yesterday's editions of The Irish Times, send a considered message to his colleagues that is deserving of public debate.
In his "final contribution to the impossible goal of justice for all", Mr Justice O'Leary gives his assessment of a number of trends that have emerged during his life on the Bench and suggests three areas of "particular concern". He has done so as a person who was an accountant and a barrister during his professional life, gave public service as a senator and director of elections for Fine Gael in the Garret FitzGerald era, was a renowned tallyman at election time and, later was deservedly appointed to the Circuit Court and the High Court. Having been well placed at the nexus of both political and judicial power, he had an idiosyncratic and radical perspective on life which should make his views more pertinent to the public, and cautionary to his legal colleagues.
He gives three examples of his concerns but presumably there are many more. The most serious, in his statement, is the failure of the Supreme Court in several respects. Having reached the decision that having unlawful carnal knowledge of an under-age girl "was and never had been an offence" under the Criminal Law Amendment Act of 1935, he manifests incredulity that the Supreme Court would set aside the only decision which Ms Justice Mary Laffoy could take in the High Court in the Mr A case.
His sharp criticism is all the more alarming because he openly dismisses the Supreme Court's decision as an attempt to curry favour with a potentially hostile media, but also couples it with the view that "younger" members of the Court may have unhealthy influence into the future.
He rightly absolves the Minister for Justice and the Attorney General of any blame, though the wrath of public opinion found its expression in the opinion polls in the middle of 2006.
Mr Justice O'Leary is also critical of two other "trends" in the justice system: the failure to give meaningful legal representation to persons before tribunals, and the denuding of judicial power by the establishment of the Personal Injuries Assessment Board, for which he holds his colleagues partly contributory. He is scathing of the insurance industry.
There is no doubt that his posthumous statement will offend, and though the late Mr Justice O'Leary is now beyond challenge, his observations raise serious matters insufficiently addressed in the public interest.
Over the last decade, there has been a subtle and deliberate subordination of the judiciary in the hierarchy of the separation of powers in this State. This has been occasioned not just by covert and overt attacks by Government, intensified recently, but also by the ineptness of the Supreme Court in engaging independently with the people directly through their decisions.
Many of our major institutions have been damaged by controversies in recent years - the Oireachtas, the Catholic Church, the banks, for example. It would be a pity, in this respect, if Mr Justice O'Leary's remarks were to go unheeded.