Michael Clifford: Let's lay down the law on accountability

Golfgate was off course but what about political patronage? 

Ireland's former EU trade commissioner Phil Hogan (left) who resigned this week over the Oireachtas Golf Society controversy seen here with Supreme Court judge Séamus Woulfe, who  attended the same event. Is it healthy for a democracy that Mr Woulfe, and others, got a direct leap from the cabinet as attorney general to an elevated perch on the Supreme Court bench, asks our columnist Picture: Niall Carson/PA Wire

The Supreme Court in Dublin’s Four Courts building was packed on June 21, 2017 to welcome Séamus Woulfe as the new Attorney General. Chief Justice Susan Denham told the gathering about the importance of the independence of the office to which Mr Woulfe had been appointed, noting its “weighty national importance”.

The ceremony was followed by another one welcoming Mr Woulfe’s immediate predecessor, Máire Whelan, to the bench as a judge of the Appeals Court. As one AG was stepping out, another was stepping in. And within three years Mr Woulfe would be taking his place on the bench as a judge of the Supreme Court.

The fall-out from Golfgate and the position of Judge Woulfe has attracted much attention. He appears to have weathered the storm that blew through public life over the last 10 days since the Oireachtas Golfing Society dinner in Clifden, Co Galway.

Should he have been attending the event? Did he break health guidelines which he was central in formulating? Wherefore his judgement?

A pertinent question yet to feature in public emotion right now, but central to the concept of accountability, is the custom of attorneys general moving onto plum judicial roles should they so wish. Political patronage has long been a feature of judicial appointments. That has changed somewhat in recent years and is undergoing further change. But at the highest level – cabinet – there remains an informal system that is patently unhealthy in a democracy.

Séamus Woulfe was a perfectly competent barrister. His appointment as Attorney General was not, to that extent, controversial. In ordinary circumstances, a senior counsel of his status could reasonably expect an appointment to the bench if he applied in the conventional manner. Such an application would most likely be to the High Court.

To that extent, his appointment directly to the Supreme Court was a boon almost definitely attributable to his role as Attorney General. Direct appointment to the highest court is rare. Of the current Supreme Court, only Donal O’Donnell was directly appointed. His forensic grasp of the law was known throughout the law library, the wider legal business and politics long before his appointment in 2010. The only other barrister to receive a direct appointment to the Supreme Court in recent times was the late Adrian Hardiman, who brought a touch of a rock ‘n roll sensibility to the easy listening environs of the court.

Elizabeth Dunne, who also serves on the current Supreme Court, made her way to the top from the lowly circuit court. 

Yet into this gilded company waltzes Séamus Woulfe directly from the cabinet table. Is that healthy for the judiciary? Should he not have to demonstrate his judicial chops before getting the nod to occupy the highest court in the land?

His predecessor at cabinet, Máire Whelan, is another case in point. Judge Whelan, as she now is, was appointed to the Court of Appeal, a relatively new court that effectively occupies a point above the High Court and below the Supreme.

She was a competent barrister who might ordinarily have expected to be in with a shout had she applied for a job on the Circuit or High Court benches. But instead, she gets a leg up to the Appeal Court directly from cabinet. Healthy for the judiciary? Healthy for democracy?

Another problem with the direct leap from cabinet to an elevated perch on the bench arose following Judge Whelan’s appointment. She was the subject of comments from retired judge Nial Fennelly, who chaired a commission inquiring into the sudden retirement in controversial circumstances of Garda commissioner Martin Callinan in 2014. Ms Whelan had been AG at the time and had given the then-taoiseach, Enda Kenny, advice that Fennelly found “alarming”. The retired judge also commented on how she later altered her evidence to his commission.

Mr Fennelly’s comment on Ms Whelan resulted in a conflab in the Dáil between Leo Varadkar and Micheál Martin.

On the same day Ms Whelan was being welcomed to the bench, Mr Martin was questioning her suitability in the wake of the Fennelly report. Mr Varadkar pointed out to him that Fianna Fáil had appointed Frank Clarke to the High Court without going through the judicial board while Judges O’Donnell and Hardiman had been appointed directly to the Supreme Court.

Martin replied: “With the greatest of respect, Máire Whelan is no Frank Clarke, is no Adrian Hardiman and is no Donal O’Donnell.” 

The comment was an extraordinary foray across the separation of powers and all for the sake of a political joust in parliament. Varadkar didn’t cover himself in glory in the exchange either. Yet since Golfgate both men have repeatedly stated that they couldn’t give an opinion on whether Judge Woulfe should resign for fear of straying across the sacred divide between executive and judiciary. Like much else in politics it would appear that this high principle is untouchable unless it is expedient to trample it underfoot.

The last AG appointed directly to the bench prior to Ms Whelan was Harry Whelehan, who in 1994 landed the job of president of the High Court, which made him a de facto member of the Supreme Court. That appointment was mired in controversy over the Brendan Smith affair which brought down a government and saw Mr Whelehan resigning from his high judicial office within a few days to head back to the law library.

All of this experience points to the unsuitability of attorneys general sailing directly from the cabinet to a plum judicial role in an exercise of naked political patronage.

It also brings once more into the spotlight the urgency to get new judicial appointment and judicial council bills through the Oireachtas to properly cater for appointments and a disciplinary process for judges.

In that vein, another former AG had a crucial role in preventing the appointments bill progressing through the Oireachtas in the last Dáil. Senator Michael McDowell effectively filibustered the bill through repeated amendments and endless debates in the Seanad.

The bill in question was a pet project of then-transport minister Shane Ross, who had strong opinions on judges that McDowell felt impinged dangerously on their independence.

At one point during the farrago, the AG at the cabinet, Séamus Woulfe, described the bill as “a dog’s dinner”. So it wasn’t a surprise during the week when Mr Ross portentously called for Woulfe to go. Nothing personal from the former minister, of course. He was, he told the media, speaking out in the national interest.

Many shared McDowell’s concerns about that bill. He succeeded in erecting his roadblock and the bill died with the last Dáil. Right now some urgency should be injected in amending it to properly reflect both the need for accountability yet the retention of independence for the judiciary. Those issues are vital in a properly functioning democracy and deserve far more attention than anything to do with golf, egos or even dogs’ dinners.