Navigating without a map: this is the task facing former chief justice Susan Denham as she considers the attendance of Supreme Court judge Séamus Woulfe at the Oireachtas golf dinner.
The Supreme Court has turned to Ms Justice Denham to guide her successor, Chief Justice Frank Clarke and his fellow judges, on what should happen next with Mr Justice Woulfe in the absence of a long-awaited code of conduct and complaints mechanism for the judiciary.
"They have left Ms Justice Denham in an unenviable position because she has to work this out on a basis that is unprecedented. We have never had an independent, judicially ordered inquiry before," said Dr David Kenny, assistant professor of law at Trinity College Dublin.
“In a situation of immense public pressure and scrutiny, she has to work out some unprecedented questions about what proper judicial conduct is and what judges can be expected to conform with from their appointment.”
The retired judge must consider four questions around Woulfe’s decision to attend the ill-fated dinner in a Connemara hotel: three relatively straightforward issues around his attendance and a fourth, far trickier issue around whether any codes or guidelines should apply.
The first question of whether he should have accepted an invitation to an Oireachtas event addresses the issue around the separation of powers between the Oireachtas and the judiciary: should he have declined and not crossed this constitutionally enshrined dividing line?
The second raises the question of whether Woulfe should have left the hotel “in light of the situation prevailing”. Should he have left once he saw there were more than 80 people there, which breached the existing limit of 50 people indoors and the just-announced new limit of six?
Given that the judge was the last attorney general and played a key role drafting public health rules introduced by the last government to stem the spread of coronavirus, it could be argued that the newly appointed judge should have known better than most in attendance.
The judge has said that he was led to believe by the organisers that the event was in compliance with public health guidelines but has apologised for attending in an unintentional breach.
On the third question, Denham has been asked to consider whether he should have just played golf, and not been at the dinner, suggesting that golf alone might have been acceptable as public health guidelines permitted it. However, the same concerns around stepping over the “separation of powers” line could still apply if he was in a four-ball with an Oireachtas member.
Private opinions on the potential fate of Woulfe shared from the Law Library, via various holiday locations, were mixed. Almost all members of the Bar contacted were flummoxed that the former senior counsel should have attended a political event at all, regardless of pandemic restrictions.
They attributed this lapse to his month-old status as a new judge and believe he may not have adjusted his mindset, still considering himself a practising lawyer with a strong sociable streak.
One source suggested that the prevailing view among younger members of the Bar was he had tainted the country’s highest court and damaged the standing of the judiciary by becoming embroiled in a political controversy and that this is “not an allowable situation” given the role of the court in interpreting the laws of the land. The institution must come first, one said.
Contact with lobbyists
There were misgivings expressed by some lawyers that the judge may have come into contact with lobbyists for the banking sector (former Fine Gael MEP Brian Hayes) and the digital business sector (former Labour senator Lorraine Higgins) who also attended the event.
“He broke rule number one: a judge of the Supreme Court should never been on the front page of The Irish Times, except for a judgment they have delivered,” one said.
Older lawyers showed some sympathy to his plight.
Denham's reputation for independence and impartiality should guarantee an unflinching, full and thorough report for the Chief Justice that might even help set guidelines for how the Judicial Council, which was established under legislation last year but has not yet commenced in its function as a judicial disciplinary watchdog, decides how a judge should conduct themselves.
"It will fast-track the establishment of those guidelines and guidance on what constitutes misconduct," said Dr Brian Barry, a lecturer in constitutional law at TU Dublin.
The retired judge’s inquiry cannot remove him – that authority rests solely with the Oireachtas under the Constitution – and he can only be removed for “stated misbehaviour”, which is generally viewed as being related to the administration of justice rather than public health breaches.
“This raises the question: is there something in this lapse of judgment that it undermines our faith in judge Woulfe’s ability to render legal judgment?” said Kenny.
If there is, he can be removed in two ways – resignation or impeachment – and Denham’s inquiry, while established on a non-statutory basis with no legal force, should help figure out the next steps into new territory around what should happen a misbehaving judge.
“It is an extraordinary step because it is trying to fill in the blanks,” said Kenny of the former chief justice’s review.