SEVERAL PROMINENT POLITICAL figures, including the Taoiseach and Labour spokesperson Brendan Howlin, have said that we need to the look to “the judiciary” or the Chief Justice to resolve the issue with Mr Justice Seamus Woulfe’s attendance at the Oireachtas Golf Society dinner.
The Judiciary does not, as it stands, have any power or process for self-discipline. The Chief Justice is not Judge Woulfe’s boss. He is a first amongst equals and has certain special constitutional functions by virtue of his office.
These do not include disciplining his colleagues, advising them on resignation, or publicly commenting on scandals involving judges.
Furthermore, under our separation of powers, the judiciary is ultimately accountable to the legislature, though the extreme and unusual step of seeking to impeach a judge for “stated misbehaviour”.
This—not some vague, undefined action of the Chief Justice—is how the Constitution envisages accountability. It is our elected representatives who are given the task of deciding upon whether to remove a judge – only they have that power.
However, the Supreme Court has taken the unprecedented move of requesting the former Chief Justice, Susan Denham, to carry out an inquiry into the behaviour of Mr Justice Woulfe and to make recommendations to the Chief Justice.
The inquiry
She has been asked to consider if Judge Woulfe should have accepted the invitation to the dinner at all; if he should have left the dinner when the circumstances became apparent; and if he should have attended the golf event at all.
This is a remarkable step because, in our legal system, there has never been a recognised power for the judiciary to order an inquiry of this sort.
One similar inquiry was the investigation undertaken by Chief Justice Liam Hamilton into the conduct of Judge O’Flaherty during the “Sheedy affair” in the late 1990s, where the Judge had allegedly made an improper intervention in the criminal process in favour of a particular individual.
Under express request from the Minister for Justice, the Chief Justice conducted an investigation. But that involved a formal request from the political branches, who do have authority to order an inquiry.
Furthermore, the allegation against a judge related directly to the administration of justice, and an inquiry was necessary in order to establish the facts of what actually happened.
In the case of Mr Justice Woulfe, the facts are uncontested and there has been no formal request from the other branches of government to carry out this inquiry.
No jurisdiction
Any recommendations made by former Chief Justice Denham would not have any legal effect. Apart from suggesting that the Judge’s conduct was improper, or intimating that the Judge should resign, little else is possible.
This episode is yet another demonstration of why an independent body to hear and investigate complaints against judges is necessary in any functioning democracy.
For many years it was a source of international embarrassment that Ireland had failed to establish such a body despite repeated calls, including from former Chief Justice Susan Denham, to do so.
Finally in 2019, more than 20 years after it was first proposed, the Judicial Council Act was passed, which includes a Judicial Conduct Committee (JCC) to consider complaints against judges. However, the relevant sections of the Act have not yet been commenced.
This is because the JCC must first draw up a guide to judicial conduct and ethics. The Act provides no guidance on what constitutes misconduct. Once the JCC has published its guidelines, which must do before next July, the relevant sections of the Act will presumably be commenced so that the JCC can begin hearing complaints.
A bit of a muddle
As well as hearing and investigating complaints and issuing sanctions where necessary, the JCC will also make a determination on whether a recommendation should be made to the Minister for Justice that the Oireachtas should remove a judge.
Currently, there appears to be much confusion about who can initiate the process of removal, and whether politicians can even comment on the possibility.
If this legislation had been in place and commenced, we would have had a clear roadmap for what to do in the case of Judge Woulfe. The guidelines for judicial conduct could help us gauge if judges should attend events like this at all, and whether Judge Woulfe’s attendance in these circumstances merits his removal.
But Judge Denham will have to assess this without any guidelines to help her. And as the statement from the Supreme Court notes, the delay in commencing the Act’s provisions means that there is no formal or statutory power available to investigate this conduct.
The Supreme Court apparently felt that there would be huge fallout for public confidence in the administration of justice if no action were taken, and this informal inquiry was necessary despite the lack of a clear legal basis for it.
Perhaps unprecedented times call for unprecedented measures. To uphold the integrity of the law, it was perhaps necessary for the Supreme Court to test its own legal limits.
Dr Laura Cahillane is a lecturer in Constitutional Law at the University of Limerick. Dr David Kenny is a lecturer in Constitutional Law at Trinity College Dublin.
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