Woulfe affair shows governments never learn from mistakes of the past

EDITORIAL

“It began with Harry, and it ended with Harry.”

The opening line in former RTE journalist, Sean Duignan’s memoir of his time as government press secretary with Albert Reynolds as Taoiseach. It was a short-lived Government, with Harry central to its collapse.

As history almost repeats itself now, Harry Whelehan was the then Government’s Attorney General whom Fianna Fail leader Reynolds was adamant should become President of the High Court, despite the opposition of his Labour party colleagues in government.

At the same time, the Brendan Smith affair was raging, over the State’s handling of the convicted child abuser’s case, and the then Attorney General’s role was central to that episode. There was high drama for days, as Reynolds made the appointment following the walk-out of the Labour ministers from the cabinet meeting, and there was a dash to the Aras for his seal. It led to the downfall of the government, the elevation of John Bruton as Taoiseach, and the establishment of the now famous Judicial Appointments Advisory Board – the ‘JAAB’ – to do just that, advise on judicial appointments. Central to the setting up of that board was Meath TD, Noel Dempsey, chief whip and a powerful figure in that Government.

It was only ever meant to be a sticking plaster, a ‘temporary little arrangement’, a stop gap to get the politicians over a hurdle. Now, the issue of judicial appointments, which Minister for Transport Shane Ross tried in vain to reform during the last Government, has landed back on the desk of another Meath TD, Fine Gael’s Helen McEntee. Justice is always a minefield of a department, with so much on its table, from the police force to the judiciary.

The JAAB advertises vacancies, considers applications from barristers and solicitors and makes recommendations to Government. Serving judges do not go through the JAAB and there is no equivalent application process for them. In 2013, in an attempt to bring more clarity to promotions and clamp down on lobbying of ministers, the then Chief Justice, Susan Denham, agreed with the Fine Gael-Labour coalition that judges seeking promotion could write to the attorney general "expressing an interest" in a position. The practice has been for those expressions of interest to be forwarded to the Minister for Justice, who is responsible for bringing judicial nominations to Cabinet.

This is where things have now become messy, particularly when the serving attorney general has his eye on the Supreme Court position. And which he could have slipped quietly into without fuss, had he not shown such poor judgement, and hightailed it off to Clifden for a golf outing in the middle of a pandemic.

Now retired, Susan Denham was asked by the current Chief Justice, Frank Clarke, to interview Seamus Woulfe about his bogey, and she found that he did nothing to justify calls for his resignation and said such a step would be "unjust and disproportionate".

However, the learned judge compounded his error even further by lashing out at all around him in his interview with Ms Denham, from media to politicians to government, saying he had apologised for his actions, but didn’t really know what he was apologising for. This is the attitude that has led to the Chief Justice saying he should resign, and continued focus on his appointment in the first place, given that three other judges are also understood to have expressed an interest in the position.

A motion seeking to impeach Seamus Woulfe is to be brought to the Dail by Solidarity TD Paul Murphy this week, and Helen McEntee faces questions on his appointment tomorrow.

As Albert Reynolds said: "It's amazing. You cross the big hurdles, and when you get to the small ones, you get tripped up."

This Government will be hoping that Seamus Woulfe might consider his former colleagues and go out the door, but the entire episode proves that the judicial appointments system is still far from perfect, and urgently needs reform.