Woulfe controversy: How wide should the gap be between politicians and the judiciary?

Need for more specific guidelines on the grey areas around socialising and a judge’s private life
Woulfe controversy: How wide should the gap be between politicians and the judiciary?
Seamus Woulfe: Is it appropriate for the attorney general, having worked so close to government, to immediately become a member of the judiciary? Picture: Maxwells

In the controversy surrounding Judge Seamus Woulfe and the Oireachtas Golf Society dinner, there are two aspects of his conduct that have come under scrutiny.

First, as with other attendees, his failure to adhere to public health advice has been criticised. But secondly, and unique to Judge Woulfe, it has been asked if it was appropriate for him, as a judge, to attend this event at all.

This second matter — the appropriateness of judicial attendance at such an event — opens up a question that we in Ireland have yet to fully explore: how wide should the gap be between politicians and the judiciary?

The instructions for the inquiry to be carried out by former Chief Justice Susan Denham seem to invite her to comment on this question as well.

The judiciary are generally independent of government and the legislature. They must often rule against the State in ways that might be costly, embarrassing, or difficult for politicians. Particularly in the constitutional sphere, the judgments of the courts have major political implications, and we do not want judges to be influenced by political opinion when they decide these cases.

Judges need to be insulated from political pressure and that is one reason why we make it very hard to remove them from office. It is also why there is a convention in our politics that politicians avoid comment on the judiciary and judicial decisions.

Relatedly, we expect judges to keep distance from politics. This might be difficult. They may know politicians socially, or from past work. But we have to be sure that these relationships are not such that they might compromise — or even appear to compromise — judicial independence.

The current controversy has underlined the need for more specific guidelines on the grey areas around socialising and a judge’s private life. Many codes of conduct in other jurisdictions have specific provisions stating a judge should not engage in social activities involving politics, or any conduct which might raise a suspicion of political bias.

The English code of judicial conduct notes that “judges have to accept that the nature of their office exposes them to considerable scrutiny and puts constraints on their behaviour which other people may not experience.” They should, the code says: “avoid any appearance of political ties —
eg by attending political gatherings, political fundraising events, contribution to political parties or speaking within political forums”.   

The Scottish code of conduct says that: “If, at the time of appointment, a judge is a member of any political party or organisation, such a tie should then be severed.” The Canadian code suggests avoiding, amongst other things, “attendance at political gatherings” and speaks of the “delicate balance” between the demands of their office and their private life.

Unlike most other jurisdictions, Ireland has never had a formal set of guidelines on judicial conduct. However, all Irish judges are aware of the conventions and unwritten understanding that they must, at all times, behave in a way which upholds the integrity of the office.

The 2019 Judicial Council Act, under which new guidelines will be drawn up, states that the new Judicial Council must “uphold and exemplify judicial independence, impartiality, integrity, propriety (including the appearance of propriety).” This recent incident, and Judge Denham’s conclusion around it, will likely inform these guidelines, and we can hope that in future we might have clearer standards around such conduct. This should benefit both judges, who will have clarity around what is and is not expected of them, and the general public who will be reassured that there is a set of standards that judges are required to follow.

The elephant in the room, however, is that Judge Woulfe was, until very recently, attorney general for the last government. It was presumably the connections he made there, through his close work with government and in the vicinity of Leinster house, that led him to be at this event.

The attorney general is the government’s legal advisor. The AG is nominally independent of Government, but is hugely politically influential. He or she sits at Cabinet, and their advice often leads to legislative or policy initiatives being altered or dropped. Any legal or policy initiative coming out of Government has been subject to AG’s advice, so the AG forms and expresses views on many legal topical questions while in office. The AG also, naturally, works very closely with politicians.

This invites the question: is it appropriate for the attorney general, having worked so close to government, to immediately become a member of the judiciary? This used to be very common, with a tradition that an outgoing AG was given first refusal on an open judicial vacancy. This stopped in 1995, after the then AG was appointed to the position of president of the High Court in controversial circumstances and was forced to resign after two days. Appointment of an outgoing AG has been rarer since then. The last two AGs, however, have been appointed to the Superior Courts, and the appointment of Woulfe’s predecessor was controversial due to the fact that it had not gone through usual the Judicial Appointments Advisory Board process.

On one level, an outgoing AG will almost always be an exceptionally qualified candidate for judicial office, with vast legal experience. But they will also, by virtue of their role, have deep political connections, and have expressed firm views on the legality and constitutionality of measures that will often find their way before the courts.

Along with guidelines for conduct, we should consider creating a rule that a person should not be appointed to the Superiour Courts until some time has elapsed after their service as attorney general. This would help, perhaps, distance the political from the judicial.

Dr David Kenny is Assistant Professor of Law at Trinity College Dublin. Dr Laura Cahillane is a Lecturer in Law at the University of Limerick.

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