Walsh, Brian Cathal Patrick (1918–98), judge of the supreme court and of the European Court of Human Rights, was born 23 March 1918 at 4 Great Denmark Street, Dublin, the eldest in a family of three sons of Patrick Walsh, civil servant, and Elsie Walsh (née O'Brien), who died in 1930 when Brian was a boy. Patrick Walsh, who became a principal officer in the Department of Education, was an Irish-language enthusiast and Brian was sent to Colaiste na Rinne in Co. Waterford, Scoil Muire, and Scoil Colmcille in Dublin before completing his schooling at Belvedere College. He took firsts at UCD in his primary degree, which was in legal and political science, and in his MA in economics under Professor George O'Brien (qv). Simultaneously, he read for the bar at King's Inns, where he was auditor of the law students’ debating society and was awarded the prize for coming third in the examination for the Brooke scholarship.
He was called to the bar in November 1941 and did pupillage with Richard McGonigal (qv), whom he joined on the north-eastern circuit. He also served part-time in the Local Defence Force; it was through this that he formed a friendship with the future taoiseach Charles Haughey (1925–2006). From 1940 he taught French at St Patrick's College, Maynooth. (His father was a French language enthusiast who had sent him to Belgium when he was a schoolboy.) Later he lectured in law at Maynooth and at UCD.
As a republican, Walsh's natural sympathies would have been with Fianna Fáil, but he was alienated by their treatment of the national schoolteachers, which led to a strike in 1946. All four of his grandparents had been teachers and he was conscious of the leadership role of national teachers in local communities. He was closely associated with Noel Hartnett (qv), a fellow barrister and Clann na Poblachta supporter, in advising Noel Browne (qv), minister for health in the inter-party government (1948–51) led by John A. Costello (qv), on the non-means-tested ‘mother and child’ scheme whose abandonment by the government, in obedience to the catholic bishops, led to Browne's resignation. After the general election of 1951 Walsh organised the meeting between Seán Lemass (qv) and Noel Browne that resulted in Browne and his followers supporting Fianna Fáil and ensuring its return to government. Subsequently, Walsh took part in discussions with Browne about forming a new party before following Browne into Fianna Fáil.
Walsh was briefed on behalf of the state in these years. He was junior counsel for the prosecution in the trial for murder of Michael Manning, who was, in April 1954, the last man to be executed in the Republic. Walsh was profoundly affected by the experience and recalled that he made a point of receiving communion on the morning of the execution. By this time his practice had burgeoned and he had become a senior counsel in January 1954. He was a popular member of the Law Library, always ready to share his considerable legal expertise with colleagues who sought his advice. In 1956 he was to the forefront of the campaign to have Serjeant A. M. Sullivan (qv) disbarred because he had revealed an admission of homosexuality made to him by Roger Casement (qv), whom he had represented at his trial for high treason. Walsh regarded this revelation as a breach of the code of confidentiality between counsel and client.
Walsh became standing counsel to the Irish Permanent Building Society, for whom he had devised a more efficient mode of obtaining orders for possession against those defaulting on mortgages. He was appointed to the board of the society. The Fianna Fáil government elected in 1957 briefed Walsh in major cases. He was leading counsel in the supreme court and at the European commission of human rights in Strasbourg, in the latter defending the right of the government to use internment without trial to deal with IRA attacks on Northern Ireland. When Éamon de Valera (qv) stood for election as president of Ireland in 1959, he retained Walsh, who admired him greatly, as his counsel; there was some apprehension that de Valera's birth in New York and the birth of his mother before the compulsory registration of births in Ireland would lead to a challenge on the ground that he was not an Irish citizen and so ineligible.
Judge: high court and supreme court
Later that year Walsh was appointed to the high court judgeship first offered to his old master Richard McGonigal. Promotion to the supreme court followed in 1961. At 43, Walsh was the youngest member ever. At the time of his appointment the taoiseach, Seán Lemass, told him that he hoped that the court would become more like the US supreme court. That is precisely what happened in the succeeding years, when the supreme court breathed life into the broad guarantees of fundamental rights in the constitution that had previously been little invoked. Walsh himself delivered tightly reasoned seminal judgments declaring that the constitution forbade the detention of accused persons pending trial on the ground that they might commit offences, or the reception of evidence obtained as a result of a breach of constitutional rights. He insisted that it was within the province of the judiciary rather than the executive to decide if evidence should be withheld from a court. A law prohibiting the importation of contraceptives, even for personal use, was struck down as an infringement of marital privacy in a case where Walsh gave the leading judgment. In what he considered his most important constitutional judgment he held that the principle that ‘the king could do no wrong’ had no place in a republic, and consequently the state could be sued for any wrongs committed by its servants or agents. Walsh's judicial activism was especially valuable against a background where law reform had been neglected by successive governments who were either indifferent or fearful of offending vested interests.
Walsh was daring in exploring new frontiers for the development of the law and made notable contributions in many areas; he was particularly innovative on court procedures. In his judgments, as in his speeches and writings, he did not worry about the embroidery of liveliness or style as long as cogency was achieved. In court he conducted searching but succinct dialogues with barristers appearing before him. He was impatient of the prevailing tendency to quote English precedents as if they were Holy Writ, and several of his notable judgments were emphatic departures from those precedents.
Walsh interested himself in European law as Ireland moved towards membership of the European Communities in the early 1970s. He headed Irish government delegations at international legal conferences. Later he served as president of the International Association of Judges and of the Fédération Internationale pour le droit Européen. His fluency in French allowed him to address international conferences in French, which served the added purpose of avoiding undue identification with British delegates. He seemed a natural choice to become the Irish judge on the European court of justice when Ireland joined the European Economic Community in 1973. When the chief justice, Cearbhal Ó Dálaigh (qv), was given that post, Walsh was in contention with the attorney general, Colm Condon, to succeed as chief justice. However, the taoiseach, Jack Lynch (qv), confounded expectations by proposing to the government that it appoint a fellow Corkman, Mr Justice William O'Brien FitzGerald (qv), who had been a committed supporter of Fine Gael. Lynch was keen to damp down the activist tendencies of the supreme court, some of whose consequences, such as the release on bail of those charged with committing serious offences, seemed to him lacking in common sense. It may also have been a factor that Walsh was associated with Charles Haughey, who had been dismissed from the government by Lynch in 1970 and put on trial for conspiracy to import arms illegally. The 1973–7 Fine Gael–Labour coalition government refused him permission to accept the invitation of both the United States and Panamanian governments to act as arbitrator in the international dispute over the Panama canal.
In 1974 Walsh was appointed as leader of the Irish team on a British–Irish law-enforcement commission set up under the Sunningdale agreement of 1973 to report on the extradition of political offenders between the Republic of Ireland and Northern Ireland. He adopted an argument, used by the Irish government at the time the agreement was negotiated, that it would be contrary to international law, and so to the constitution, to extradite political offenders. As a result, the Irish members of the commission advised that the most that could be done was to empower the Irish courts to try in the Republic political offenders who resisted extradition for trial in Northern Ireland for offences alleged to have been committed there. Legislation was enacted providing for this, but was little used. The position on extradition espoused by Walsh and his colleagues found little support from international lawyers, even in Ireland, who argued that it could not be concluded that it was contrary to international law to extradite political offenders just because most extradition treaties allowed states party to them to refuse extradition in such cases.
The issue bedevilled British–Irish relations, as the Republic could be presented as a refuge for terrorists, and neither the government nor media in Britain were impressed by reminders that it had long been part of the law of England that political offenders could not be extradited to foreign countries. Walsh was unrepentant. After the supreme court softened its line to allow extradition in one case in 1984, he spoke to journalists about his exclusion from the court on that occasion and criticised members of the court; he could be a formidable adversary.
After a limited form of extradition for political offenders was introduced in 1987, Walsh gave a judgment refusing an extradition because there was evidence that the persons whose extradition was sought would be ill-treated in prison in Northern Ireland. The British prime minister, Margaret Thatcher, condemned the judgment as ‘grossly offensive and an encouragement to terrorists’ (Times obit., 11 Mar. 1998). In another extradition case around the same time, Walsh said that requests for extradition should be refused if the British authorities insisted on describing the state in their request as ‘the Republic of Ireland’ (the term used in the British parliament's Ireland Act (1949)) rather than ‘Ireland’ as the constitution provided. The issue of the proper nomenclature of the state was one that exercised Walsh greatly. It reflected his wish to emphasise that the name of the state derived from the constitution and not from a British parliamentary act.
President of law reform commission
From 1962 onwards, as chairman of the committee on court practice and procedure, Walsh was involved in formulating proposals for law reform. In 1975 he was appointed first president of the law reform commission. This meant that he sat only occasionally in the supreme court, where he found himself out of sympathy with some of his new colleagues. At the law reform commission, as elsewhere, Walsh was very well liked by those whom he had chosen to work with him. They found him considerate, encouraging and, in contrast to his austere demeanour on the bench, rather good fun. He had a dry wit with an occasional sharp edge. While the commission produced some work of high quality during his presidency, recommendations in the area of family law were slow to emerge. This led to criticism and a stand-off with Garret FitzGerald's (qv) government when they refused to sanction the continued employment of a draftsman and failed to fill vacancies among the commissioners. When Walsh's second five-year term ended in 1985, he was keen to return full time to the supreme court and so the question of his reappointment did not arise.
Profound differences of opinion about the future direction of family law were part of the backdrop to these events. Although a judgment by Walsh had legalised contraceptives, at least for married couples, and the law reform commission under his presidency recommended the liberalisation of the law on judicial separation and the abolition of illegitimacy, he was conservative on many of the emerging family law issues. He was never in favour of the introduction of divorce, and favoured as the way forward the expansion of the law relating to nullity, which the attorney general in August 1977 had asked the commission to examine. He was behind the law reform commission's badly received recommendation in 1981 that an action for adultery should be introduced, available to either spouse, against a person who had seduced the other spouse. He was also implacably opposed to any moves to legalise abortion, which, he argued, would be contrary to the guarantee of the right to life in the constitution. He was suspected, wrongly, of being an éminence grise behind the proposal to amend the constitution, adopted in 1983, recognising the right to life of the unborn.
Ultimately, Walsh had more faith in judicial decisions than in statute law reform as a means of developing the law. From the time he left the law reform commission in 1985 until his retirement in 1990, he was pleased once more to sit regularly in the supreme court, especially as he admired and got on well with Chief Justice Finlay. They differed, however, when Walsh was one of a majority of the court who declared legislation to give effect to the Single European Act unconstitutional. As a result, referendums had to be held in Ireland before acceptance of any significant amendments of the treaties of what became the European Union.
European Court of Human Rights
From 1980 Walsh combined his work at the law reform commission and the supreme court with his duties in Strasbourg as the Irish judge of the European Court of Human Rights. As an appellate judge of long experience, he helped to ensure that his more academic colleagues did not lead the Court of Human Rights into flights of fancy. He found himself at odds with the majority of the court when, in a case against the UK in 1986, they decided that the European convention on human rights required the de-criminalisation of homosexual practices as between consenting adults. Walsh inclined to the conservative view that the law had a legitimate role in upholding moral standards. In another case against the UK he dissented on according a special privilege to journalists to conceal their sources. He was willing to go further than his colleagues in finding British anti-terrorist legislation contrary to the convention. He also went further than his colleagues in an immaculately reasoned concurring judgment condemning the conviction of the Guinness boss Ernest Saunders for theft, obtained in breach of the right of an accused not to incriminate himself. He was one of only two judges on the court who decided in 1991 that the deportation of five Tamils seeking asylum in Britain had been in breach of the convention. He remained active in the court until his death. He was remarkably youthful and vigorous until he suffered a first stroke a few years before the second one that resulted in his death within a few days on 9 March 1998.
Apart from being a member of the European court of human rights, Walsh acted as an ambassador for legal Ireland, giving lectures abroad, mainly about the Irish constitution, and contributing articles to legal journals. He loved travel. At home, he maintained strong contacts with academic lawyers, to whose books he was pleased to contribute valuable forewords. Walsh was well read and had a wide range of intellectual and artistic interests. While, in his quiet way, he had a formidable presence and was in some ways quite a proud man, he was free of the self-importance about judicial office that so often afflicts judges. He hated pretension or snobbery. His liberal instincts as a judge were rooted in a deep-seated suspicion of the police and a profound respect for human privacy as well as compassion for the disadvantaged and dislike of privilege. He saw nothing undemocratic about increasing the sphere of judicial decision-making. He had an immense fund of anecdote, mostly legal, with which he was willing to regale listeners at length. Above all he was a kind, courteous man, who did many charitable deeds unostentatiously, and who inspired affection as well as respect but not, perhaps, familiarity.
Distinctions and public service
Walsh was awarded an honorary doctorate in laws by the University of Dublin but not by the NUI, which he had served as a somewhat critical government nominee on the governing body of UCD (1958–70). In 1976 he stood for chancellor of the NUI, advocating closer links between its colleges, and finished third in a poll of graduates that elected the public servant T. K. Whitaker. His energy was prodigious and could be seen in the service he gave institutions outside the legal sphere. He chaired the boards of several institutions, including St Vincent's Hospital, Dublin, and the Chester Beatty Library. He chaired the government commission on itineracy and the parliamentary constituency boundaries commission. He was president of Royal Dublin Golf Club.
He married (1944) Noreen Joyce, who survived him, together with the four daughters and one son of the marriage. His son and two of his daughters became solicitors. Two other daughters were law graduates of UCD. Another daughter married John Murray, a former attorney general and judge of the European court of justice, who served as chief justice of Ireland (2004–2011). A portrait of Walsh by John F. Kelly is in family possession, and a bust by Garry Trimble in the King's Inns, Dublin.