The flexing of muscles by the Supreme Court in setting up an inquiry into the conduct of one of its own took a lot of experienced observers by surprise.
Legal experts had pointed out that there was no power available to the Chief Justice, Frank Clarke, to question Mr Justice Seamus Woulfe, let alone sanction him in any way.
Speaking to thebefore the Supreme Court announcement, Dr Laura Cahillane, a lecturer in law, said heads of courts, such as the chief justice, can really only have a conversation with a judge about controversial matters.
“There is no formal process, there is no law to cover this area, there are no rules within the judiciary — this is all very, very informal,” the University of Limerick academic said.
A specialist in constitutional law, she said there is no formal mechanism for disciplining judges, though she said this will change when sections of the Judicial Council Act, passed last year, commence, in a year or so.
“The only formal legal process that we have is Article 35.4.1 in the Constitution and all that says is a judge can’t be removed except for stated misbehaviour or incapacity and in order to do that you need resolutions in the Dáil and Seanad,” said Dr Cahillane.
She said that is the “nuclear option” and has never happened before and said it “only came close” at the time of the Judge Brian Curtin case in the years 2004 to 2006.
Dr Cahillane said judges do take account of political and public concerns and criticisms of judges, such as with Mr Justice Woulfe.
At 6.30pm on Monday, came the curveball from the Four Courts.
“The Supreme Court has requested former Chief Justice, Ms Justice Susan Denham, to consider certain questions arising out of the attendance of Mr Justice Seamus Woulfe at an event in the west of Ireland last week and to report her conclusions and recommendations to the Chief Justice,” their statement said.
It said Ms Justice Denham had agreed to that request and would commence her work immediately.
It said she has been asked to consider:
- whether Mr Justice Woulfe should have accepted the invitation to dinner;
- whether he should, in all the circumstances, have left the hotel in the light of the situation prevailing;
- whether he should have attended the golf event without attending the dinner.
In addition, the former chief justice is asked to consider whether there are any relevant codes of practice or guidelines and to make any recommendations in that regard which she considers appropriate.
“This non-statutory approach has been necessitated because of the fact that relevant sections of the Judicial Council Act, 2019 have not yet been commenced,” the statement said.
Talking again to theafter the statement Dr Cahillane, co-author of Constitutional Law in Ireland, described it as a “very unusual move” by the Supreme Court.
“It’s completely unprecedented the inquiry Ms Justice Susan Denham is carrying out as it has no statutory power,” she said.
“However, if she does recommend resignation, there is no way that Mr Justice Woulfe can be forced to do so — that would still be his own choice.”
She said the ordering of the report has echoes in the Philip Sheedy case in 1999, but said, at that time, the then minister of justice asked the then chief justice Liam Hamilton to carry out a report.
And the minister’s request was made against the background of the Oireachtas considering the potential removal of two judges in that case.
“So, the context there was a removal procedure about to happen and then the facts were going to be established,” Dr Cahillane said.
She said in the golf dinner case the “facts are uncontested” and there has been no call from the Government to carry out a report.
“It’s unusual for the Supreme Court to take it upon themselves and initiate this inquiry but it may be they felt they had no choice after comments by the Taoiseach and the Labour spokesman yesterday, that it was up to the judiciary and it was a test for them.”
The statement refers to the decision of the “Supreme Court” rather than the decision of the Chief Justice to set up the inquiry.
Dr Cahillane said it was a decision of the “whole Court” and this might be a legacy from the Philip Sheedy affair when all judges ultimately contributed to Chief Justice Hamilton’s report.
She added: “It would seem to carry more weight given this is not simply the decision of one judge but the result of a considered discussion of the whole court.”
She said the choice of the former chief justice to conduct the report is significant: “Susan Denham is very well respected in judicial and legal circles. On her retirement in 2017 she was described by the Law Society as the ‘most transformational figure in history of Irish courts’.
“She is well-known as being very capable in dealing with strained relations having presided over a very difficult period at the time of the referendum to reduce judges pay, where relations between the government and judiciary became very difficult.”
She said it was also reported (in Ruadhán Mac Cormaic’s book, The Supreme Court) that she acted as a go-between during the difficult few days of investigations into the Sheedy Affair.
Dr Cahillane said she imagines that Mr Justice Woulfe will cooperate with the inquiry: “The strange thing is that he could potentially challenge the legality of the inquiry. It has no basis in law and since it will deal with matters including his right to a good name and inevitably, his livelihood, it would certainly be open to him to take a challenge on the procedures to the High Court. However, this is a very technical legal point and in reality it is very unlikely that he would do so.”
She added: “However, even by the very fact that the inquiry has been set up it may be that his position is now untenable. Of course, it all depends on the conclusions Mrs Justice Susan Denham will reach — it is of course possible that she could conclude that his conduct was regrettable but not intentional and not sufficient to be considered for removal.”
Asked what conclusions, could Ms Justice Denham come to, she said: “The only possible outcomes are that the Denham report could recommend that he resign or that his conduct was not so serious such that further action should be taken. She does not have the authority to recommend that he be removed or sanctioned.”
She said the judiciary does not have the power to impose any sanctions on Mr Justice Woulfe.
And, since the 2019 Judicial Council Act does not apply yet, the only further action that could be taken would be for the Oireachtas to initiate the removal process under Art 35.4.1.
Concluding, she said: “The other possibility, and this is a strong one, is that just like in the Sheedy Affair, Mr Justice Woulfe will decide himself to resign.”