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Diarmaid Ferriter: Former judge inquiring into a judge over Clifden event seems bizarre

Separation of powers aside, we expect our Supreme Court judges to use good judgement

Fifty years ago, minister for external affairs Patrick Hillery was on a mission to secure Ireland’s acceptance into the European Economic Community (EEC). He visited the EEC capitals, negotiating issues of tariffs, fisheries, and industry and, from an Irish perspective, vital commitments in relation to regional policy. He also directed the government’s successful campaign for a "yes" vote in the subsequent referendum on membership and piloted the legislation on Ireland’s accession through the Dáil.

Given this involvement, his appointment as Ireland’s first EEC commissioner in 1973 seemed a wise choice and he took up the social affairs portfolio, eventually securing a directive mandating equal pay for men and women in 1976. He then publicly and successfully opposed an attempt by the Irish government to secure derogation from its immediate implementation. It was a reminder that Hillery was working for the EEC and not the Irish government.

Von der Leyen and her colleagues, including Hogan, have made much of the need for 'unfailing solidarity' within the EU in facing the Covid pandemic

The Fine Gael minister for finance Richie Ryan had maintained Ireland could not afford to implement the directive, but his attack on Hillery as a "Fianna Fáil appointee" caused deep resentment in Brussels and the commission responded by issuing a rare public rebuke against Ryan.

This episode made it clear attempts to drag national politics into the commission’s business would be frowned upon. The ongoing relevance of that is obvious given the Phil Hogan controversy and his subsequent resignation as trade commissioner. Whether Hogan’s recent travels and his arrogance was an Irish and not a commission problem was a question that he might have expected to be answered in his favour.


Allowing the commission to be bent by a wind blowing from Ireland could have been deemed to compromise the independence of the commission, but European Commission president Ursula von der Leyen and her colleagues, including Hogan, have made much of the need for "unfailing solidarity" within the EU in facing the Covid pandemic and, given the enormity of that crisis, the wind was not just an Irish one. Hogan did more than just, as the Taoiseach put it, "undermine the approach to public health in Ireland".

But the fallout from the Clifden fiasco is hardly over yet. Alongside the EU Commission/national politics issue, separation of the judiciary from politics is a concurrent controversy here and those lines are also tangled, despite the much-vaunted and important division of power between the two. That a former Supreme Court judge, Susan Denham, is inquiring into a serving Supreme Court judge, Séamus Woulfe, in relation to his attendance at the Clifden event seems bizarre. It is perhaps both an attempt to dilute politicisation of his grossly misjudged actions by preserving the independence of the court, and a substitute for the still-awaited judicial conduct committee. Nonetheless, her findings might be useful in establishing some sense of what the judiciary believe a Supreme Court judge is or is not permitted to do, as scant public attention is devoted to that question.

When Irish Times journalist Ruadhán Mac Cormaic published his seminal book The Supreme Court in 2016, he noted wryly that individual judges of that court “have written books on philosophy, fishing and the nature of evil. One even wrote a science fiction novel. But none has published a memoir about life as a judge.”

Despite their power and the profound societal impact of their decisions, “for the most part they go about their work quietly, largely unnoticed by the world outside the bubble of the Four Courts . . . wrapped in a forbidding cloak of archaic, esoteric language and otherworldly courtroom conventions . . . their power in inverse proportion to the level of public scrutiny its exercise attracts.”

What lines judges tangle when they don't use their judgement however, awaits the judge's judgment

Historically, the political backgrounds of numerous Supreme Court justices have been no secret; of the nine Supreme Court judges appointed between 1937 and 1969, for example, five were affiliated to Fianna Fáil. But it has been widely accepted that while appointments may have been party political, subsequent judgments were not, and indeed those decisions, the product of a jealously guarded independence, have caused considerable difficulties for various governments. But there have also been political controversies as a result of breaches of the separation of powers, such as when judge Harry Whelehan was pressured to resign to avoid a government’s collapse in 1994.

In recent years the extensive focus on judicial reform and the cutting of judicial pay inevitably created more confrontation, directly and indirectly. Ironically, as chief justice, Susan Denham made what was regarded as a pointed intervention in 2017 dwelling on the imperativeness of the separation of powers when welcoming the appointment of Woulfe as attorney general, maintaining he would be an important and impartial bridge between the judiciary and the legislature. Her comments were seen as a rebuke to politicians rowing about the judiciary and the appropriateness of appointing former attorney general Máire Whelan to the Court of Appeal.

What lines judges tangle when they don’t use their judgement however, awaits the judge’s judgment.