Golf dinner fallout: We are entitled to expect high standards from our judges

A good deal of the law regarding the discipline of higher court judges is a long way out of date. In fact it goes back, to the Act of Settlement 1701, which was repeated with little thought in the 1922 and 1937 Constitutions. Times have changed very much since the early 18th century.

The background was entirely different. There was then no party system or public or media pressure, in the modern sense, and next to no separation of powers. The main threat to the independence of the judiciary came from the monarch.

Naturally, most modern democracies responded to these huge changes by altering their systems for selecting and disciplining judges.

There was then a period of purdah of several years, while the detail was debated in a leisurely way within the judiciary

To take a minor, but telling, point, 20 years ago, a comparative law book was published on these changes. There were chapters from England, Scotland, several civil jurisdictions and even China. Despite the fact that Irish academic lawyers are not behind the door when it comes to international projects or jaunts, a chapter on the “Republic of Ireland” was missing.

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Perhaps a possible author was approached but responded, honestly, “nothing to write about here”.

Put simply, all we have in the Constitution is the impractical and undesirable possibility of impeachment in the House of the Oireachtas leading to removal.

Nor is it that we did not have ample warnings that here was an accident waiting to happen. There is no space here to give the entire litany. One may select as the baseline an episode in 1999, when a Supreme Court judge seemed to be tangentially involved. The incident centred on the sentence to be served by an architect who had, while driving with a just-over-the-limit concentration of alcohol, killed a mother of four.

Following sentencing, Mr Justice Hugh O’Flaherty gave informal advice to the person convicted as to the legal process by which to approach the Circuit Court to get the sentence reduced. This was then followed by his lawyers. Following a meeting with the Chief Justice, the Supreme Court judge resigned.

Without going into details, one can suggest that here there was an element of a rush to judgment by media and public, leading to the Supreme Court judge being treated unfairly. This can happen when there is no fair and transparent system to adjudicate on an important matter.

Purdah

Slowly, it came to be accepted that something needed to be done, and a committee including judges and lawyers, chaired by Ms Justice Susan Denham, made sensible proposals. There was then a period of purdah of several years, while the detail was debated in a leisurely way within the judiciary (a group of about 150 each busy in their own courts). Among the points of contention was whether the reforms should apply to existing judges or only to newcomers.

Eventually, a Bill was published when Enda Kenny was taoiseach. It was filibustered within an inch of its life in the Seanad and then dragged its slow length to the statute book, as the Judicial Council Act in July 2019. It bears saying that without the constructive, non-tribal quality of Denham; the happenstance of Kenny's government needing the support of Independents; and the tenacity of Shane Ross (much good it did him), we would not have got this far.

The centrepiece of the 2019 Act is the Judicial Council, with a number of functions, among them establishing sentencing guidelines. But relevant here is another body, the Judicial Conduct Committee whose duty is to set guidelines for judicial conduct and ethics, and to investigate complaints against judges.

But the complaints and investigation system has not yet come into force. So in regard to recently appointed Supreme Court judge Séamus Woulfe, we are left with the traditional system; which means in effect that no one has any statutory power over the judge. Instead , following the practice set by the then chief justice dealing with Hugh O'Flaherty in 1999, Chief Justice Frank Clarke appears to have spoken to Mr Justice Woulfe. The difference is that this time, instead of dealing with it himself, the Chief Justice has referred the matter to a respected former chief justice involved in drawing up the reform plans.

There used to be a concept that a judge should be judged by their words, or conduct, on the bench, with what happened elsewhere being regarded as 'off-duty'

While the statement does not say that Mr Justice Woulfe would be bound by former chief justice Ms Denham’s conclusions and recommendations, it seems implicit in the situation that this is the case and that Mr Justice Woulfe would not rely on the fact that there are no relevant statutory provisions and that the constitutional power of impeachment cannot be called upon.

Four points can be made here. First, it is reasonable to expect superior standards from judges, as high officials of the State, whose effectiveness in enforcing laws depends on public respect. Most people think of judges as a group: the behaviour of one member rubs off on the others. Accordingly, they are to be judged by higher standards than the people who bought tickets for the Berlin bar.

Second, there used to be a concept that a judge should be judged by their words, or conduct, on the bench, with what happened elsewhere being regarded as “off-duty”. But, by now, either those days have gone or, if not completely, then an Oireachtas golf dinner is hardly like a family occasion.

Third, Woulfe’s apology was prompt and complete. Contrast that of Phil Hogan, apology mark 1.

Finally, the terms of reference set for Denham are broad enough to allow her to consider a point which has received little public discussion. It is that the most serious possibility, resignation, is not the only one. One lesser alternative is a public admonition.

Some years ago, I discussed this possibility, in the abstract, separately, with two High Court judges. The conventional one said: “Judges are to be respected. Without respect, they would be undermined and could not continue; so it would come to the same thing. The judge would have to go.” The other judge said: “Perhaps, by now, people are getting round to the view that judges are mortal, with feet of clay; and are open to criticism especially in regard to public conduct off the bench and may be capable of learning from their mistakes.”