Gavan Reilly: Why Woulfe should stay in the Supreme Court…

Firstly, an acknowledgement: what you’re about to read is partly a contradiction of what I wrote here only a week ago. Then I said Seamus Woulfe’s position on the Supreme Court was not tenable, and that it was plainly nonsense to say the Clifden golf dinner was simultaneously in compliance with Irish Hotels Federation guidelines, and also in breach of the Government’s public health policy.

That position is, plainly, nonsense. But the events of the last week have allowed cooler heads to prevail in the Oireachtas – and on the opinion pages of the Meath Chronicle too.

My declaration last week that Woulfe’s position was untenable was chiefly influenced by the dead-of-night release of explosive letters exchanged between Woulfe and his boss, the Chief Justice, Frank Clarke. And, on their face, they did make Woulfe’s position all but impossible. The judiciary doesn’t air its dirty laundry in public; it certainly doesn’t publish internal correspondence between its own members. That Clarke was willing to do so, and to increase the public pressure on one of his own colleagues, is just jaw-dropping. That the same letters confirmed none of Woulfe’s colleagues want anything to do with him is the icing on the take.

The Supreme Court is a collegiate court: it tends to sit in panels more regularly than any other court, with judges hearing cases in groups of three, so that there is a broader consensus in how the country’s laws are permanently defined. On its face, if the rest of the court simply don’t believe Woulfe should be there – and have now allowed that position to be placed formally on the record – there is a serious problem.

Slow down a moment, though, and remember how we got to this position. The entirety of the Supreme Court, Woulfe included, asked Susan Denham to be the final arbiter of whether Woulfe’s actions were a red card offence. Her ruling was that a yellow card was enough, and recommended an ‘informal resolution process’ (code for ‘some sort of mutually agreed penance’). It was exactly this process which apparently resulted in the rest of the court deciding Woulfe was to be thrown overboard; that his position was basically untenable and that he had no prospect of ever winning them over again.

Stand band and ask a question. If merely going to the dinner wasn’t enough to cause Woulfe’s position to be untenable, then what is? Is it the (justified) public fallout from the release of the transcript of Woulfe’s interview with Denham, where he lazily wrote off the whole scandal as a media invention? Or is it the release of the letters where the country’s top jurist invites Woulfe to sit in a dark room with a bottle of whiskey and a revolver?

The truth is that it’s a combination of both of those things – and both of those things were done at the behest of Clarke. If someone in the Supreme Court has brought us to the brink of constitutional crisis, it’s not Woulfe: it’s his boss.

…in a role he perhaps never should have got

So members of the Oireachtas are correct to tread carefully: there is little appetite to instigate the long and politically draining process of kicking a judge of the country’s highest court. Almost all TDs are worried about the precedent: if this is the threshold for impeachment, is there a slippery slope? Could a future authoritarian government use this example to justify clearing out the authors of unpopular decisions? In a few years’ time, when the frustration of a pandemic is over, would we still recognise the motivations that led us to remove a Supreme Court judge from office?

So, having been given the job, he should stay… but, perhaps, only because he’s been given the job in the first place. There are serious questions to answer now as to whether he should have been nominated to the role.

That’s not to cast doubt on his credentials. You might be on the radar for appointment as an Attorney General by virtue of party affiliation or loyalty, but you can’t do the job unless you’re a foremost legal mind. The pressures of the job are intense and though it not as much in the public eye, the hours are wild. Woulfe’s predecessor Máire Whelan was said to work more weekends than not.

When it comes to moving to the courts, however, Whelan is an interesting example. In 2017 as Attorney General she sat on the Judicial Appointments Advisory Board (JAAB) as it sought to fill a vacant seat on the Court of Appeal. The JAAB reported back to Government that there were no suitably qualified lay candidates. As AG, Whelan was separately expected to pass on the names of any judges who had an interest in promotion. It was deeply controversial, therefore, that Whelan herself was named as the Government’s nominee for the job, at the final meeting of Enda Kenny’s term.

Three years later, we’re in a similar position. Woulfe at least went through the formalities of applying to JAAB for the vacant seat at the Supreme Court, and so cannot be accused of short-circuiting the process. But bear in mind that sitting judges do not apply through JAAB, which considers only lay applicants - and that three years previously, there were no qualified lay applicants for a job on the Court of Appeal. Three years later, how many civilian applicants were there likely to be for a job even higher? The chances are, precious few. Woulfe got the approval of JAAB, and is thus qualified for the role, but in truth there are likely to have been few civilian rivals.

That then leaves the ball in the court of Helen McEntee, as Minister for Justice. It is she who decided, having considered Woulfe’s credentials and those of anyone else, to put forward the name of the former Attorney General for appointment to the country’s highest court. Or is it? Micheál Martin and Eamon Ryan were unaware of there being any judicial contenders - but did Leo Varadkar know, and entertain, them?

Woulfe may be qualified but had zero expertise - in wild contrast to the rumours of the overlooked candidates. If that was a conscious decision on the Government’s part, then fine, so be it - but let’s at least hear the rationale.