Opinion: this extraordinary controversy highlights the current absence of proper mechanisms for dealing with such judicial matters

In the midst of the extraordinary controversy surrounding Mr Justice Séamus Woulfe, the Supreme Court is currently the equivalent of a plane flying with one failed engine. It is important, in these remarkable circumstances, to bear in mind a fundamental principle of the Irish constitution set out in Article 6: "All powers of government, legislative, executive and judicial, derive, under God, from the people". The people are the ultimate arbiters of power, even over the judiciary. 

Chief Justice Frank Clarke's unprecedented letter advising Justice Woulfe to resign is perhaps partly an effort to gauge public opinion "with the situation as it is now," as he put it and to acknowledge the people's power over the judiciary. The Chief Justice’s position is the exact opposite to that taken just weeks ago by the former Chief Justice Susan Denham in her report investigating the matter. She concluded that there were insufficient grounds to warrant his resignation, and that it would be disproportionate.

A different conclusion

What drove Mr Justice Clarke to this different conclusion? He noted the "cumulative effect" of the controversy and how Mr Justice Woulfe's failure to "recognis[e] the serious public concern and the consequent damage to the Court has only added to the seriousness of the situation".

We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences

From RTÉ Radio 1, RTÉ Legal Affairs Correspondent Orla O'Donnell reports on the extraordinary correspondence between Chief Justice Frank Clarke and Supreme Court Justice Seamus Woulfe 

Just as importantly, Mr Justice Clarke also considered the consequences for the separation of powers. In particular, he pointed out Mr Justice Woulfe’s negative comments about government, and government policy which "as a result of both their tone and content, created further genuine controversy". This sentence is important. It suggests that Mr Justice Woulfe betrayed an important principle: judges should not "engage in or give rise to matters of controversy most particularly involving the other branches," as the letter put it. 

Where does this leave the affair? Crucially, judges do not remove judges. All eyes now turn to the Oireachtas who are the only institution with this constitutional power. The Oireachtas must find "stated misbehaviour or incapacity" to remove a judge. What amounts to "stated misbehaviour" is uncharted territory. The Oireachtas has never passed such a resolution, although they have come close in the case of former Circuit Court judge Brian Curtin.

Perhaps the drafters of the Constitution made the threshold for removing a judge deliberately vague. "Stated misbehaviour" could, for example, cover a judge displaying brazen bias during a hearing, untoward dealings with lawyers, or matters in their private life unbecoming of a judge. In this unique instance, Chief Justice Clarke's remarks may be enough to bend politicians towards the conclusion that Mr Justice Woulfe’s conduct amounted to "stated misbehaviour". Undoubtedly, public perceptions and the separation of powers will weigh heavily on politicians’ minds should they have to consider Justice Woulfe’s position.

We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences

From RTÉ Radio 1's Morning Ireland, Dr David Kenny from Trinity College Dublin on the legal options available to resolve the Séamus Woulfe dispute

The broader context

To focus beyond the immediate horizon of the present controversy, the delay and current absence of proper mechanisms for dealing with these matters is deeply regrettable. Perhaps ironically, upon her retirement in 2017, former Chief Justice Denham was particularly critical of the absence of a Judicial Council to deal with disciplinary matters. As things currently stand, Irish judges do not have any domestic conduct guidelines to follow, notwithstanding the passing of the Judicial Council Act in 2019. Such guidelines and processes will follow.

But this controversy could not have come at a worse time. In this instance, the judiciary find themselves in the awkward position of not being able to rely upon a framework that the Judicial Council Act envisages for dealing with judicial misconduct but that the Council has yet to complete work on, due in 2022

Looking further afield, the longer this saga draws out, the more damage it does abroad. The Irish judiciary generally and historically enjoys a very strong international reputation. It scored highly in the most recent European scorecard for judicial independence (although its ranking for perceived independence among the general public has dropped off slightly since 2018). In an era where judiciaries around the globe are under threat, the Irish state must act decisively to resolve the matter.

We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences

From RTÉ Radio 1's News At One, RTÉ Legal Affairs Correspondent Orla O'Donnell reports on how all of country's judges met for first time as the new Judicial Council of Ireland in January 2020

Back home, the reason we ought to trust judges is because of their judgement. Where it waivers, particularly at the highest levels of the judicial system and in such controversial and ongoing circumstances, the standards which must be borne by judges such as Séamus Woulfe are necessarily high. Put simply, perception matters.

To return to Article 6 and the theme of 'people power', Irish citizens have the right "to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good". It is quite impossible to know precisely where the public stand on this issue. But, for the sake of the people’s confidence in the Irish judiciary and for "the requirements of the common good" it seems that Mr Justice Woulfe simply cannot continue to serve as a judge on the Irish Supreme Court.

Dr Brian Barry is the author of  the forthcoming How Judges Judge: Empirical Insights into Judicial Decision-Making (Informa Law) 


The views expressed here are those of the author and do not represent or reflect the views of RTÉ