Guest piece by Michael Farrell on the death of Donal Barrington: Advocate for the underdog and first President of Irish Human Rights Commission

Michael Farrell is a human rights law consultant, the Irish member of the European Commission on Racism and Intolerance, a member of the Council of State and former FLAC Senior Solicitor.

The death took place on 3 January 2018 of Donal Barrington, one of a handful of lawyers who transformed the legal system in the Republic in the 1960s and 1970s.  He went on to be a Supreme Court judge and the first President of the Irish Human Rights Commission (IHRC) and co-chair of the Joint Committee of the IHRC and the Northern Ireland Human Rights Commission (NIHRC).

Born in 1928 Donal Barrington qualified as a barrister in 1951 but with no legal connections it was two years before he got his first case, an experience that may have influenced his lifelong sympathy for the underdog.  In the 1960s, however, he took the first of a series of cases that challenged the deeply conservative nature of Irish society at the time.  In the Nicolaou case in 1963 he challenged a law which allowed the adoption of a child born outside marriage without the consent of the father.  They lost the case but he would go on to challenge other aspects of the harsh and moralistic laws around marriage and sexuality.

In 1966, in Byrne v Ireland, he successfully challenged a rule under which State agencies could not be sued for any damage they did, thereby laying the basis for much modern public interest law.  And in 1972, acting for Mrs May McGee, who had been advised by her doctor that she could not have any more children for health reasons, he successfully challenged a ban on the sale or importation of contraceptives – the first chink in the clerical control of all matters to do with sexuality.

This was human rights lawyering before the term was invented and did not make him popular with elements in the Government, the Catholic church or some of the judiciary.

After that he was seen as the lawyer for the marginalised and acted for Dunnes Stores workers wrongly accused of theft, successfully challenged the exclusion of women from juries and represented David Norris in the early stages of his challenge to the criminalisation of homosexuality.

He was appointed to the High Court in 1980, to the EU General Court in 1989 and to the Irish Supreme Court in 1996 but did not stay long there before retiring in 2000.

As a barrister Donal Barrington regarded the Irish Constitution as a living document that should adapt to changing times so as to protect people’s rights, not as a legal straitjacket to restrict them.  He was liberal and reformist in his views outside the courts as well.  He was a founder member of a liberal thinktank called Tuairim in the mid-1950s and wrote a pamphlet about policy on Northern Ireland that foreshadowed some of the aspects of the Belfast/Good Friday Agreement.

He spoke out bravely against a boycott of Protestants in Fethard, Co. Wicklow, in 1957 and was a founder member of the Irish Council for Civil Liberties in 1976.

When the Irish Government somewhat reluctantly set up the IHRC 2001, as required by the Belfast Agreement, they appointed him as its first President.  They may have thought that after 20 years as a judge, his youthful radicalism would have dimmed.  If so, they underestimated him.  When there was a major row about the selection of some members of the Commission [including this writer], he made his displeasure known and they were all appointed.

He was full of enthusiasm about his new role and the IHRC produced a flood of policy documents in its first 18 months: on incorporation of the European Convention on Human Rights, an independent police complaints body, the UN Convention on DisabilityRights, and anti-racism measures.

He was particularly enthusiastic about the Joint Committee with the NIHRC, as proposed by the Agreement, and the idea of a Charter of Rights for both jurisdictions in the island of Ireland.  Unfortunately, due to the failure of the UK and Irish governments to provide funds for a permanent secretariat for the Joint Committee, it has not so far played as important a role as he wished.  Donal Barrington retired from the IHRC in July 2002 for health reasons.  He was a courteous and generous man with a passion for social justice and he helped to lay the foundations of the human rights movement in Ireland as it exists today.

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