The judiciary and the Oireachtas
Sir, – There is no need to make a constitutional crisis of the appointment of Seamus Woulfe to the Supreme Court.
The Chief Justice, via the Judicial Appointments Advisory Board(JAAB) proposed the appointment of Mr Woulfe (whether with or without consultation with his Supreme Court colleagues, we don’t know).
The Government accepted the proposal.
The Chief Justice requested his predecessor to examine Mr Woulfe’s role in the “Golfgate” event. She found that his participation was unwise, but did not merit his resignation.
The Chief Justice has not contested the findings of the retired Chief Justice but has expressed his personal opinion that Mr Woulfe should resign, apparently on the basis of discussions following the Denham report.
The published correspondence between the Chief Justice and Mr Woulfe has been very “lawyerly” and, in parts, rather precious. It changes nothing in the Denham report.
The Chief Justice (and his colleagues in the Supreme Court) cannot reasonably claim the right to drop a new member of the team after the first tee shot.
Nor should they expect the Oireachtas to provide cover for their apparent change of heart by engaging in an utterly unjustified impeachment procedure.
Let’s not forget that a member of the JAAB rightly represented the Irish judiciary in a demonstration in Warsaw to protest against government interference with the judiciary in Poland. – Yours, etc,
Sir, – Can I ask why your correspondents repeatedly refer to the question of whether or not the Oireachtas will “impeach” Mr Justice Seamus Woulfe?
Article 35.4.1 of the Constitution speaks about judges being “removed from office”, but makes no reference to their being “impeached”.
The Judicial Council Act 2019 does not use this term, and nor do the standing orders of either House of the Oireachtas as they relate to the procedure to remove judges.
To “impeach” is to charge or accuse the holder of a public office with misconduct – not to remove them from office – and therefore seems incorrect in this context.
The use of the term seems to be the latest manifestation of “West Wing syndrome” – the desire of the Irish media and political spheres to ape the political system of the United States at every opportunity.
Another symptom of this is the characterisation of an unseemly dispute between two judges as a “constitutional crisis”.
A constitutional crisis is a conflict in the function of government that is incapable of resolution within the existing constitutional framework. No such crisis exists here, since a perfectly adequate course of action exists by which the issue can be resolved.
Under the Judicial Council Act, not yet in force, the Minister for Justice can be required, on foot of a report from the council’s judicial conduct committee, to propose motions seeking the removal of a judge. In the interim, the only question which the Oireachtas needs to address is whether, if that procedure were in force, this committee would be likely to recommend such a course of action at the present time.
Having had sight of the report compiled by Ms Justice Susan Denham, the answer to that question must be a clear and unequivocal “No”.
If the separation of powers and trust in our courts are to mean anything, then the Oireachtas should make it clear that, with the greatest of respect to the Chief Justice, the “personal opinion” expressed in his absolutely extraordinary letter to Mr Justice Woulfe is entirely irrelevant.
On that basis, TDs and Senators should take no action on this imagined “crisis”, and turn their minds back to the real economic and social crises which face the country. – Yours, etc,
Sir, – It seems as if judgment of the judgment of this judge has moved on to judgment of the judgment of those who lately judged him fit to be a judge, including those who now judge this to have been a misjudgment. – Yours, etc,
Sir, – The Government seems to be in a quandary over whether the removal of Mr Justice Seamus Woulfe because of the whole “Golfgate” saga is appropriate or proportionate. The short answer is “No”.
However, it now appears that other members of the Supreme Court may be considering their positions if Mr Justice Woulfe is intent on remaining.
As Chief Justice, Frank Clarke was chairman of the Judicial Appointments Advisory Board which actually recommended the appointment of Mr Woulfe.
It would seem that he is the obvious candidate to fall on his sword to bring this sorry mess to a conclusion. – Yours, etc,
Sir, – The Supreme Court imbroglio would be serious were it not so comical. – Yours, etc,
Dr JOHN DOHERTY,
Co Dhún na nGall.
Sir, – I write to express my complete agreement with your columnist Stephen Collins in his excellent piece “Supreme Court the architect of its own misfortune” (Opinion & Analysis, November 13th).
I also commend my former colleague at the bar, Tony Aston SC, for his courageous and forthright letter (November 12th).
Not only is there no need for impeachment proceedings, it would, to borrow the words used by former Chief Justice Susan Denham, be “unjust and disproportionate” to call for Mr Justice Woulfe’s resignation from office.
Thankfully the Chief Justice (who presided over the Judicial Application Appointments Board last July which recommended Mr Justice Woulfe’s appointment) has in fact wisely obviated the necessity for impeachment proceedings through the informal inquiry which he asked his former colleague and previous chief justice Susan Denham to conduct at the end of August.
This informal inquiry at which she and Mr Justice Woulfe were both separately assisted by counsel, and which she so carefully and judiciously conducted, came to clear and resounding conclusions (however much she rightly qualified the legal status of her review).
It was to all intents and purposes to any lawyer looking at it, a “judicial inquiry” and one carried out with her formidable skill, intimate understanding of the issues, fairness and competence.
She found it was not unreasonable for Mr Justice Woulfe to consider that the dinner was Covid-19 compliant; it was, and is, not unreasonable that he was satisfied that the event was Covid-19 compliant on the night of the dinner; it would not be fair, or in accordance with due process, for any further action to be taken against Mr Justice Woulfe in relation to the events in issue in her report; there was no breach of law committed by Mr. Justice Woulfe; Mr Justice Woulfe placed reliance bona fide on the assurances of the organisers of the dinner that the Covid-19 regulations were complied with; Mr Justice Woulfe’s attendance at the dinner did not breach the principle of the separation of powers; it would have been better if Mr Justice Woulfe had not attended the dinner; Mr Justice Woulfe did not consider separately the propriety, or if there would be an appearance of impropriety, for a judge of the Supreme Court to attend a celebratory dinner in a public place while there is a pandemic in the State and should have considered whether the community may regard the judge’s participation as an impropriety; Mr Justice Woulfe did nothing involving impropriety such as would justify calls for his resignation from office; and such a step would be unjust and disproportionate.
She concluded by expressing the opinion that “it would be open to the Chief Justice to deal with this matter by way of informal resolution”. But clearly qualified and conditioned this opinion with the important words “in the light of the mitigation referred to above”.
In these circumstances it would not only be “unjust and disproportionate” but also dangerous and do further damage to the respect rightly due to the judicial branch of government and the even more vital separation of powers which underpins our democracy for the Government to recommend or the Oireachtas to embark upon impeachment proceedings in this matter.
Nor can the “manner” in which Mr Justice Woulfe “met” the informal inquiry which he was requested to take part in form the basis for any call for impeachment. These are subsidiary and ancillary to the main grounds of complaint. – Yours, etc,
(Senior Counsel, retired),