Colleague pressure on a judge would raise questions about independence – academic

Judicial independence means judges are independent from government – and each other, says Patrick O’Brien

 

If judges were putting pressure on a colleague to resign it would raise questions about judicial independence, according to a legal academic who specialises in judicial studies.

Patrick O’Brien, a senior lecturer in law in the school of law at Oxford Brookes University, in England, was speaking about reports the Supreme Court judge, Séamus Woulfe, has been told by colleagues they hold strongly negative views of his role in the Golfgate controversy.

It is understood Mr Justice Woulfe was shocked by what was said to him when he was visited by three colleagues on October 2nd, at the outset of the “informal resolution” process by which the court is trying to resolve the matter.

Reports of what transpired at the meeting and the failure for an agreed meeting to go ahead between Mr Justice Woulfe and the Chief Justice, Frank Clarke (until Thursday), had led to speculation that some judges in the court wanted Mr Justice Woulfe to resign.

Judicial independence has two aspects, Dr O’Brien said. Judges are independent from government, but also independent from other judges.

Dr O’Brien said judges need to respect the fact their colleagues are appointed by government. The fact that there is not a statutory system in place yet to deal with the problem created by Mr Justice Woulfe’s attendance at the Golfgate dinner, is “really, really a shame,” he said.

“A can of worms has been opened, and the worms are going everywhere.”

Mr Justice Woulfe was appointed to the Supreme Court directly from having held the post of Attorney General, and has yet to hear a case.

He was due to meet with the Chief Justice as part of a informal resolution process, but the meeting was postponed on three occasions at Mr Justice Woulfe’s request, before being cancelled because he was unwell.

A judge “is independent from government and from his peers in order to protect the integrity of his decision-making,” Dr O’Brien said.

There are legitimate reasons why a judge might be concerned about the judgement that has been shown by Mr Justice Woulfe during the crisis, yet seeking to pressurise a colleague to resign might still not be an appropriate thing to do.

Sheedy crisis

University of Limerick law lecturer, Laura Cahillane, said that at the time of the Sheedy crisis in 1999 (when then Supreme Court judge Hugh O’Flaherty was involved in re-listing a case), it was other judges in the court threatening to resign that is believed to have eventually led to wording in a report that provoked the resignation of Mr Justice Hugh O’Flaherty from the court.

The current crisis shows how much the judicial complaints process that is to be set up under the Judicial Council Act, is needed, Dr Cahillane said. It is expected to take at least a year for the new statutory regime to be put in place.

“I could understand a sense of frustration among members of the Supreme Court because they may feel that this whole episode has damaged their own standing in terms of public confidence in the administration of justice.”

Judges may feel that Mr Justice Woulfe sitting on the Supreme Court is damaging for the reputation of the court in the eyes of the public, she said.

“We should not be in a position, if we are, where judges are putting pressure on a colleague to resign, but that’s the way it has been for a number of years because the only form of discipline we’ve had is this form of informal discipline.”

For decades, discipline in the judiciary has depended on “how you are seen in the eyes of your colleagues.”

NUI Galway professor of law Donncha O’Connell said it might be possible to break the apparent stalemate in the resolution process if the Chief Justice published the details of his plan for resolving the controversy.

“If these were demonstrably reasonable and proportionate and designed to restore confidence in the administration of justice it would be difficult for Mr Justice Woulfe not to acquiesce. If such terms were resisted or rejected and if the authority of the Chief Justice was being unreasonably and overtly challenged, it would be difficult for the political branch not to become involved in some way,” Prof O’Connell said.

Prior to the meeting on Thursday between Mr Justice Woulfe and the Chief Justice, Frank Clarke it is understood the judges of the Supreme Court (excluding Mr Justice Woulfe) met to discuss the crisis.

Prof O’Connell said the longer the controversy drags on the more damaging it is to public confidence in the Supreme Court and the administration of justice more generally.

No provision

“There is no provision in the Constitution for judges of the Supreme Court, or any other collegiate court, to effectively remove one of their number by censure, formally or informally.

“The only entity that can remove a judge from office is the Oireachtas for ‘stated misbehaviour’ and that is a nuclear option that presents all sorts of practical problems,” he said.

On October 1st, a report was published by the Judicial Council in which former Chief Justice Susan Denham found that asking Mr Justice Woulfe to resign over his attendance at the Golfgate dinner would be disproportionate and unjust.

However, the next day the council published the transcript of Mr Justice Woulfe’s interview with Ms Justice Denham, which was an appendix to the report, and its content led to further controversy.