O’Higgins, Thomas Francis (1916–2003) politician and judge, was born in the house of his maternal grandmother at Sunday’s Well, Cork, on 23 July 1916, eldest of five children (four boys and a girl) of Thomas Francis O’Higgins (qv), then a dispensary doctor (subsequently political activist, Fine Gael TD and minister) and his wife Agnes (née McCarthy). Kevin O’Higgins (qv) was his uncle and godfather; his brother Michael O’Higgins (1917–2005) was a Fine Gael TD and leader of Seanad Éireann (1973–7), who was married to Bridget Hogan O’Higgins, Fine Gael TD and daughter of Patrick Hogan (qv). O’Higgins kept a bust of his great‐grandfather T. D. Sullivan (qv) on his desk. Although O’Higgins remained proud of his family’s contribution to public life (and always defended his father’s association with the Blueshirts as upholding free speech and democracy), he disavowed any vengefulness for the deaths of his uncle and grandfather at the hands of anti‐treaty republicans and emphasised the need to move away from the divisions of the Civil War. Some occasional remarks seem to suggest regret that the Irish Parliamentary Party (IPP) had not succeeded in obtaining Irish freedom by constitutional means. (This was not necessarily incompatible with his regular attendance at 1916 commemorations and concern that Fine Gael should emphasise that it had as much right as Fianna Fáil to claim descent from the Sinn Féin party of the War of Independence era; it is possible to respect the IPP while placing the primary responsibility for their defeat and the outbreak of the conflict on the British rather than Sinn Féin.)
O’Higgins was educated at the Sacred Heart Convent, Leeson St., at St Mary’s College, Rathmines (run by the Holy Ghost Fathers) (1926–30), at Clongowes (1930–34) and at University College Dublin (where he was auditor of both the Law Society and the Literary and Historical Society – making his name with a pro‐Franco speech on the Spanish civil war). He had expected to follow his father into medicine, but acquiesced in his father’s decision that he should study law; his Intermediate Certificate results in science were undistinguished and he had been a distinguished debater at Clongowes. He obtained first‐class honours in law and political science at UCD. At the King’s Inns he won the Senior Victoria Prize in 1938 and came second in the John Brooke scholarship.
Barrister and soldier
He was called to the bar in 1938 and practised on the Midland and Northern circuits. He became a senior counsel in April 1954 and was elected a bencher of King’s Inns in 1967. During the Emergency (1939–45) he was a company commander in the Local Defence Force, in charge of an anti‐aircraft artillery battery at Ringsend, Dublin. (He briefly served in the university‐based Regiment of Pearse as a student.)
Dáil deputy and government minister
O’Higgins was an unsuccessful Fine Gael candidate for Dublin South in the 1943 general election. He did not stand in 1944, preferring to campaign for his father, and was a founder of the Central Branch of Fine Gael (made up of younger middle‐class activists) and their policy review magazine The Forum (1944–8). In 1948 he became Fine Gael TD for Laois–Offaly (formerly held by his father, who had moved to the Cork Borough constituency). He retained this seat until 1969, though his electoral position was somewhat precarious due to pressure from bar work and constituency rivalry with the locally based Oliver J. Flanagan (qv), a highly effective campaigner. (O’Higgins’s disdain for localism was reflected in his decision to drop bar practice in his constituency to avoid conflicts of interest.) He was one of eight oireachtas members chosen to represent Ireland on the Council of Europe in 1950; this gave him a strong interest in European affairs, and he was subsequently a long‐serving member of the Irish Council of the European Movement and campaigner for Irish EEC membership.
In the 1954–7 inter-party government O’Higgins served as minister for health. When offering him the health portfolio the taoiseach, John A. Costello (qv), told O’Higgins that his job would be ‘to take health out of politics’ (A double life, 156). His term was initially dominated by the implementation of the 1953 Health Act, which had been passed by the Fianna Fáil government following the ‘Mother and Child’ debacle of 1951; implementation required delicate negotiations with the Irish Medical Association and the Labour Party. O’Higgins established a commission on voluntary health insurance (January 1955), whose report (May 1956) led to the passage of a Health Act (the last piece of legislation passed by the oireachtas before the March 1957 general election) establishing the Voluntary Health Insurance scheme for middle‐class participants not covered by the earlier acts.
In 1956 O’Higgins lobbied within the government for a move away from the fiscal conservatism of the minister for finance, Gerard Sweetman (qv), and secured cabinet support for an economic recovery programme. This, however, was derailed by the economic shocks associated with the Suez crisis in October and foundered when the government lost the support in the dáil of Seán MacBride’s (qv) Clann na Poblachta.
After the 1957 general election O’Higgins combined a resumed career at the bar with a Fine Gael front bench position. He found it difficult to combine these positions; he felt he could not afford to concentrate full‐time on politics, while his political commitments interfered with his case preparation and meant that his primary focus was on personal injury cases with little legal content. His genial nature, however, meant that he was widely liked both at the bar and in the dáil. With Declan Costello and Alexis FitzGerald (qv) he founded a study group, the Research and Information Centre, which recruited new members, debated party policy and published a monthly journal, the National Observer. This milieu produced the 1965 ‘Towards a Just Society’ policy document which urged that Fine Gael should move away from small‐government conservatism towards social democratic policies. O’Higgins was seen as a key moderniser, with a good grasp of economics and an ability to build common ground with the Labour party and with more conservative members of Fine Gael. In 1967–8 he headed the Fine Gael representation on the committee to discuss possible revisions to the Constitution. In 1965 he favoured, unavailingly, an electoral alliance between Fine Gael and Labour in the general election. When Liam Cosgrave was elected unopposed as Fine Gael leader in April 1965 in succession to James Dillon (qv), O’Higgins became party spokesman on finance and economic affairs, displacing the conservative Sweetman.
With a presidential election due in 1966 O’Higgins suggested, unsuccessfully, that Fine Gael should propose Seán MacBride as a candidate to stand against the outgoing incumbent Éamon de Valera (qv); he then urged John A. Costello to stand, before being persuaded to go forward himself. De Valera decided that his role as president (supposed to be above party) precluded him from campaigning, whereupon RTÉ, the state broadcasting service, decided that in the interests of balance it would not cover O’Higgins’s campaign; this was criticised by Fine Gael since de Valera’s duties in connection with the extensive official commemoration of the fiftieth anniversary of the 1916 Rising meant that he regularly appeared on the air. O’Higgins campaigned as the representative of a new generation free from the divisions of the past, running an American‐style campaign in which his fashionably dressed wife and young family were prominent. In April 1948 O’Higgins had married Therese ‘Terry’ Keane; they had five sons and two daughters. O’Higgins’s campaign presented ‘Tom and Terry’ as an Irish version of John F. Kennedy and Jacqueline Kennedy, the private recreations of the deceased US President not then being public knowledge. (The Fianna Fáil traditionalist Kevin Boland (qv), de Valera’s campaign manager, raged at the sight of the old enemy presented in such a manner; in a memoir written some years later, Boland jeered that, in ‘the Tom and Jerry’ campaign to bring the ‘patter of little feet to the dreary corridors of Áras an Uachtaráin’, de Valera ‘was like Cuchulain tied to the standing stone … The pygmies came out of retirement and gathered round for the kill, and the poisoned arrows that had failed over the years were reproduced’ (Boland, Up Dev!, 8)). In five weeks of campaigning O’Higgins covered over 20,000 miles. De Valera defeated O’Higgins by 10,617 votes – a margin of less than one per cent of the votes cast. A strong urban–rural divide was noticeable; O’Higgins polled strongly in the eight Dublin constituencies (which had a lower turnout than elsewhere, attributed to sunshine which sent Dubliners to the seaside) and in Cork city, but de Valera was victorious in all other constituencies apart from Laois–Offaly and Mayo South. O’Higgins’s performance helped to revitalise the party organisation and recruit new members. At the 1969 general election he moved from Laois–Offaly to Dublin County South, where he headed the poll.
O’Higgins’s influence within the party was reinforced by charm and affability and by his skills as a debater and parliamentary scrutineer of proposed legislation. As deputy leader under Liam Cosgrave, O’Higgins was seen as an intermediary between the ‘liberal’ wing of the party (headed by Declan Costello and Garret FitzGerald (qv)) and a leader identified with more conservative elements. (Some of Cosgrave’s supporters such as Patrick Lindsay (qv), who proposed O’Higgins as the 1966 presidential candidate, suspected the Just Society group, including O’Higgins, of plotting to depose Cosgrave; O’Higgins publicly denied such claims.) FitzGerald later stated that had O’Higgins remained in the dáil he, not FitzGerald, would have succeeded Cosgrave as Fine Gael leader in 1977. During the early years of the Northern troubles O’Higgins paid several visits to Northern Ireland, and was one of the Fine Gael representatives at the funerals of those killed in Derry on ‘Bloody Sunday’ (30 January 1972).
After the 1973 general election was called O’Higgins took a leading role in negotiations with the Labour Party leading to a Fine Gael–Labour joint programme for government; this was decisive in the defeat of Fianna Fáil. Having already agreed to contest the 1973 presidential election at a time when it was expected to precede the general election, O’Higgins did not contest the February general election. On 30 May 1973 he was unexpectedly defeated in the presidential election by Erskine Childers (qv); he then returned to practise at the bar.
In December 1973 he was appointed a judge of the high court, and on 23 October 1974 became chief justice. As chief justice he improved relationships between the Northern Ireland bar and bench and those of the Republic, leading to an arrangement whereby Irish senior counsel wishing to appear before Northern Ireland courts were no longer required to seek admission to the English bar as a precondition. He was exceptional in being popular at all levels of the judiciary and not just among his colleagues in the supreme court.
As a doctrinal lawyer he was outshone by some of his colleagues, particularly John Kenny (qv) and Seamus Henchy (1917–2009). The percentage of cases in which he did not prepare judgments and left the work of composing written decisions to other members of the supreme court was relatively high. He adopted a more deferential attitude towards the political process than some of his colleagues and predecessors. (His Times obituarist commented: ‘as he was a lawyer among politicians, he tended to be a politician among lawyers’.) However, concern with Garda ill‐discipline in the treatment of suspects caused him to depart from his generally pro‐executive stance. He made a significant contribution to Irish criminal law in stating and maintaining (in spite of Garda opposition) a strict doctrine under which any evidence obtained in breach of the constitutional rights of suspects would be treated as inadmissible in criminal prosecutions: The People v. Madden  IR 336; The People v. Lynch  IR 64. Earlier in the Emergency Powers Bill Reference  IR 159 he had imposed further restrictions on Garda conduct towards political detainees by recognizing that suspects were entitled to a series of novel constitutional rights, including the right to legal advice and medical treatment.
O’Higgins’s concern with controlling police abuse of suspects’ rights was one part of his response to the wider problem of political violence which coincided with his period as chief justice. In the McGlinchey v. Wren  IR 154 extradition case O’Higgins ruled in December 1982 that the INLA leader Dominic McGlinchey (qv) could be extradited to Northern Ireland to face trial for the murder of an elderly postmistress (he was later acquitted). This ruling reversed the understanding, which had been maintained by the Irish courts for the previous decade, that republican combatants could resist extradition on the basis that the offences for which they were sought were ‘political’ offences (a category which under section 50, sub‐section 2 of the Extradition Act 1965, was immunized from extradition). Sitting in a three‐judge court O’Higgins held that murder and crimes of violence were so self‐evidently abhorrent that they could have no possible political justification and that the use of violence by ‘self‐ordained political arbiters’ was ‘the very antithesis of the ordinances of Christianity and civilisation and of the basic requirements of political activity’ ( IR 154, 160 (quoted in Gilbert, 72)). It so happened that when O’Higgins gave the supreme court judgment in December 1982, McGlinchey had jumped bail and remained at large until his capture by gardaí on 16 March 1984. The evening of his apprehension McGlinchey obtained an interim high court injunction restraining his extradition until the following week, which the state appealed to the supreme court the next day. In an emergency evening sitting on St Patrick’s Day, O’Higgins, sitting with the same judges as in December 1982, ordered that the previous order for extradition be executed. Suspicion was expressed in some quarters that O’Higgins had deliberately chosen not to summon Brian Walsh (qv) and Niall McCarthy (qv), who would have been more disposed towards the existing doctrine (upheld in several 1970s decisions) that a political offence was defined solely by political motivation. On the other hand, even McGlinchey’s legal team had conceded that the shooting of an elderly woman could not be regarded as a ‘political’ offence, and in subsequent decisions both before and after O’Higgins’s departure from the bench the supreme court, sitting in full panel, had followed his McGlinchey decision: e.g., Shannon v. Fanning  IR 548. Whatever may be said about the content of O’Higgins’s decisions, they were perceived as involving considerable personal risk; for many years thereafter he lived under police protection, though he himself questioned the necessity for such protection.
Whereas O’Higgins was seen as a liberal or social democrat in politics, he was widely regarded (and often criticised) as a conservative judge. (The journalist Emer O’Kelly, an old acquaintance, suggested that the common factor was a paternalist belief that society was not self‐ordering but required active intervention for the general welfare.) Some encouragement to the view that O’Higgins was a liberal in social matters had been given by his judgment in Irish Family Planning Centre v. Ryan  IR 295, when the court, in a ruling which received international publicity, held that an order by the Censorship Board impounding a consignment of family planning pamphlets was unlawful. However, his judgment in Blake v. the Attorney General  1 IR 117 (in which the supreme court declared that the Rent Restrictions Act 1960 constituted an unjust attack on property rights) and in the Private Rented Dwellings Bill 1981  IR 181 (in which the court held that portion of a proposed rent restriction measure was repugnant to the constitution) irritated left‐wing and social democratic opinion. His reputation as a conservative was definitively confirmed by his judgment in David Norris v. the Attorney General  IR 36, in which the supreme court (on a 3–2 vote) denied that the legislative prohibition on homosexual acts was unconstitutional. O’Higgins argued that homosexuality was, in many cases, a merely suggestible condition and that if legitimised, its negative effects (which he identified as sexually transmitted disease, marriage breakup and a high suicide rate) would multiply. After O’Higgins’s death this decision was denounced in the Irish Times by the columnist Fintan O’Toole (4 March 2003), who accused O’Higgins of costing lives by maintaining a situation where homosexuals were unwilling to approach Aids prevention and treatment services for fear of prosecution, and compared him to Islamic fundamentalists. These comments sparked a letter‐page controversy in which correspondents pointed out that O’Higgins’s opinion reflected a legitimate view that constitutional interpretation should be guided by the framers’ intention, and that O’Higgins had not held the oireachtas to be precluded from legalising homosexual acts. In a 1991 interview O’Higgins stated that he personally favoured such legalisation, suggesting that he had undergone a change of opinion from his position in the Norris case (when he had described practicing homosexuals as ‘devotees’).
European court of justice
On 15 January 1985 O’Higgins was appointed to the European court of justice, from which he retired in 1991 (after legislation clarified the pension rights of judges who had served in Europe). This was seen as an act of political patronage as he had little knowledge of Community laws and did not speak French (the court’s working language); however, his kindness and affability made him personally popular with the court’s members and staff. He participated in several decisions which emphasised the supremacy of the European court over national laws and the right of citizens to sue for redress in their domestic courts if they were disadvantaged by their government’s failure to implement European directives. These included the Grogan case, where a number of Irish women successfully sued the government for discriminating against them in social welfare payments.
In retirement O’Higgins devoted himself to his favourite pastimes of fishing and golf and was a regular attender at St Patrick’s Church, Monkstown. (One of his last public interventions, however, was to urge voters to support the removal of the constitutional ban on divorce in 1995.) In 1996 he published a memoir entitled A double life; while this was not seen as particularly distinguished, it provides a welcome contrast with the unwillingness of most of his political contemporaries to record their reminiscences and reflections. He died in a Dublin nursing home on 25 February 2003.