LAST UPDATE | 10 Nov 2020

TAOISEACH MICHEÁL MARTIN has said that party leaders should meet “without prejudice” to discuss the ongoing controversy surrounding the Supreme Court judge Seamus Woulfe. 

The Taoiseach’s suggestion comes as the Ceann Comhairle warned TDs not to make any comment on the controversy should they be required to “adjudicate on the matter”. 

The potential removal of a judge is possible under Article 35.4 of the Constitution for “stated misbehaviour”, but this would have to be approved by both the Dáil and Seanad.

Such an impeachment motion can be lodged by any TD for the above reason, as outlined by law lecturers Laura Cahillane and David Kenny. 

The discussions come after it was revealed last night that Chief Justice Frank Clarke had informed Woulfe of his personal view that Woulfe should step down from the highest court in the State.

The move came following the fallout from Woulfe’s attendance at the controversial Oireachtas Golf Society dinner in Clifden in August.

Clarke told Woulfe in a letter dated 5 November that it was “the unanimous view of all of the members of the Court” that the affair had caused “significant and irreparable damage” to the court.

A review into Woulfe’s attendance at the dinner by former chief justice Susan Denham found it would be “unjust and disproportionate” for the judge to resign, and he has subsequently declined to step down. 

Labour’s Brendan Howlin said earlier that the “non-Oireachtas process has completed itself” and that TDs and Senators may have to step in. 

The government had sought the advice of Attorney General Paul Gallagher over the matter and said earlier this afternoon that the AG had outlined the “serious constitutional issues that now arise”.

“The members of the government, who are also members of the Oireachtas, are acutely aware of the sensitivity and seriousness of the issues and the need to ensure that the constitutional framework is fully respected by all concerned. This includes avoiding inappropriate public comment,” the government said in a statement.

The government agreed that it will continue to reflect on these issues.

Referencing the AG’s advice this afternoon, Sinn Féin TD Martin Kenny asked Minister for Justice Helen McEntee to come into the Dáil to outline the advice that was received from the AG. 

“I think it’s important that we build maximum consensus among all parties and groupings in this house to try and find a way forward through this,” he said. 

In response, the Taoiseach said he would like to meet with party leaders on the matter. 

“It would be my intention to seek a meeting with party leaders, where we could jointly assess the situation without prejudice. And I’m mindful of comments that have been made by representatives of different parties this morning, in a constructive vein,” Martin said. 

This is a very serious issue, it’s fundamental to the separation of powers, at the very heart of our Constitution. So we have to respond in a very serious and sensitive proper way.

Emphasising the sensitivity around the matters, Ceann Comhairle Sean Ó Fearghaíl warned TDs this afternoon that they should be cautious about what they say.

“Without prejudice to how this matter may proceed, I must point out that members of this house are in a different position to others in relation to commentary insofar as they may ultimately have to adjudicate on the matter in accordance with the Constitution, legislation and standing orders,” Ó Fearghaíl said.

It is crucial therefore that members do not comment on the matter either on the floor of the house or elsewhere in such a way as to give rise to a perception of bias, as this could act as a serious impediment to their ability to discharge their important constitutional functions, if so required in the future. 

Tenable

In a statement last night, Martin Kenny TD said it was “not a desirable, or frankly tenable situation ” for Woulfe to remain on the court. 

Speaking to reporters earlier, the Sligo-Leitrim TD said that he was not expressing his own view but was reflecting those of the other members of the Supreme Court. 

“What I said last night is that I reflected what the judiciary had said, I continue to do that,” he said. 

Kenny added that the situation was “fraught with difficulty” but that the judiciary has had “a huge problem” with how Woulfe has dealt with the situation.

Social Democrats co-leader Catherine Murphy TD said there would be significant caution in beginning an impeachment process against Woulfe because he “hasn’t broken any law”.

“An impeachment process is being talked about but we really have no basis for knowing how that would play out,” she said. 

I think there will be a great deal of caution on this. It’s very difficult to know how it will play out. He has lost, obviously, the confidence of his whole colleagues on the Supreme Court, it is really for himself to consider that.

On the potential removal of Woulfe by TDs and Senators, Murphy added: “I think it would be a very difficult one to see it succeeding given that there wasn’t a law broken. And I think there’ll be a caution about commencing something that is weak to begin with. And that doesn’t mean that a very significant issue of judgment.”

Labour’s Aodhán Ó Ríordáin said that politicians needed to be cautious about what the say in relation to the matter, 

“We have to be careful what we say now. And there could be another case in 5-10 years time, we don’t know. So if you’re serious about the Constitution, you’re serious about your role in politics. Then you know the utterances you make are going to have an impact.”

Speaking on RTÉ’s Today with Claire Byrne, Labour’s justice spokesperson Brendan Howlin said that if TDs and Senators were to remove the judge it would be “a very unique process for us”. 

“Ultimately we’re in a situation now where the non-Oireachtas process has completed itself and there are no other options. The Constitution does provide options that may well be taken. But I want to be very clear that in all of this, if there is a procedure that involves invoking article 35.4 of the Constitution, the Dáil and Seanad if you like becomes a chamber of decision in terms of the removal of the judge.”

“And that is a very unique role for us. One bluntly that politicians don’t do well normally in terms of, we are an adversarial type of institution. And we have to have absolute fair procedure, that is crystal clear.”