WITH THE EXTRAORDINARY and unprecedented publication of the Chief Justice’s personal view that Judge Seamus Woulfe should resign from the Supreme Court, the question of Judge’s Woulfe’s continued tenure on the Court rests in two places: with Judge Woulfe himself, and in Leinster House.
There are only two ways that a judge, short of death or retirement, can leave office. First, he or she can resign, which is, as the Chief Justice stressed, entirely for the individual judge to decide.
Secondly, the judge can be impeached in the Houses of the Oireachtas for “stated misbehaviour” or incapacity.
The impeachment process has never been carried out; judges have stepped down before the process could be undertaken.
In 1999, following a scandal known as the Sheedy Affair, the government announced it was considering moving impeachment motions for two judges alleged to have committed misconduct by intervening in the progress of a criminal case. Both judges resigned.
In the mid-2000s, a motion of impeachment was moved against Circuit Court Judge Brian Curtin, who was charged with possessing child pornography, though ultimately acquitted due to a defective search warrant. Judge Curtin resigned before the motion was brought to a vote.
In 1941, a motion of impeachment was moved against a Circuit Court judge by reason of incapacity, but this was withdrawn when the judge agreed to retire.
How would impeachment work?
Under the Standing Orders, a motion is moved in a House of the Oireachtas calling for a judge’s removal. If the House does not want to reject the motion outright, a Select Committee is formed to investigate and report on any alleged misconduct, and the House then votes on the impeachment, hearing from the judge and/or his representatives first. Fair procedures must be followed throughout this process.
The real question that arises from this concept is that it is not defined in the Constitution or in any Act, or in any judgment of the courts. The misbehaviour must be “stated”, that is, there must be a clear articulation of the alleged misconduct.
But there is no guidance on what that misconduct has to be. Does it have to be criminal misconduct; a breach of the law; conduct related to the administration of justice? The Constitution does not say. The Attorney General is being consulted, and will presumably advise the government on this point.
There is a credible argument that the Oireachtas gets to determine this in the manner that it thinks fit; that is, misbehaviour is what the Oireachtas thinks is sufficient to remove a judge.
There is probably some limit on this: the courts have said that they could examine the impeachment process to make sure there had not been “clear disregard” of the Constitution. But once the Oireachtas made a good faith determination that there had been sufficient misbehaviour, it is unlikely that the courts would intervene.
Options available to Oireachtas
So how should the Oireachtas make a determination as to whether Judge Woulfe’s conduct reaches this standard? Though there is no formal guidance, there are several places that politicians might look to.
The Judicial Council Act 2019, though not fully in force, provides some instruction. It does not define the constitutional concept of stated behaviour, but it does define “judicial misconduct” as breaching acknowledged standards of judicial conduct, and in so doing, bringing the administration of justice into disrepute.
We can also look abroad to how other countries have characterised judicial misbehaviour in the context of removal from office.
For example, in 1997, the Solicitor General of New Zealand advised that misbehaviour means ‘conduct that is [so] morally wrong and improper that it demonstrates a judge lacks the integrity to continue to exercise judicial office’.
He rejected that the concept could be defined around public confidence in the administration of justice alone.
In 2006, the Privy Council, the highest court of the Commonwealth, considered the notion of misconduct in relation to the Chief Justice of Gibraltar and focused much more on the ability of the judge to stay in office following the misconduct.
The Privy Council suggested that it was relevant if the conduct affected directly his ability to carry out the duties functions of the office, or adversely affected the view of others that he could carry them out; if it would be contrary to the administration of justice for the judge to remain in office; and if the office had been brought into disrepute by the actions of the judge.
Reasoning from these standards, could we conclude that Judge Woulfe’s conduct reaches the threshold for impeachment? There are several potential difficulties.
First, as former Chief Justice Denham noted in her Report, there is no clear standard of conduct for judges in place in Ireland (though one is being drawn up by the new Judicial Council at present). This means that it is hard to define the standards of conduct that Judge Woulfe departed from.
Secondly, as the Chief Justice noted in his letter, it is not Judge’s Woulfe’s actions in attending the dinner alone that are problematic, since no law was broken and public health advice was no knowingly violated. It is the combination of his failure of judgement in respect of the dinner and his subsequent reaction to the controversy that has caused the problem.
This included, perhaps, a failure to understand and take responsibility for his actions, and his remarks about the government and other judges made to Judge Denham and revealed in the transcript.
But this means that his misbehaviour is diffuse, and hard to pin down. It is not a single action but a series of actions and attitudes that created this issue.
Options available to Woulfe
Judge Woulfe can potentially claim that it is unfair to hold him to a standard of conduct that is vague and not clearly set out in advance.
On the other hand, if we focus on the administration of justice, it is clear that Judge Woulfe’s conduct has undermined it.
That the President of his Court would take the unprecedented step of publicly commenting that, in his view, he should resign, and his Court unanimously feel that serious and irreparable damage has been caused by the effect of his actions, could be seen to rise to the standard of stated misbehaviour.
Our lack of clear codes of judicial conduct, and lack of definition of the core constitutional concept of stated misbehaviour, leave us navigating without maps in this situation.
It will be for our politicians to decide if they believe Judge Woulfe’s conduct reaches the constitutional threshold for using the extraordinary power of impeachment, something that should not be done lightly. It would appear to us that there is at least a reasonable case either way.
Dr Laura Cahillane is a Lecturer in Law at the University of Limerick. Dr David Kenny is Assistant Professor of Law at Trinity College Dublin.
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