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Is the Chief Justice right to try and oust Seamus Woulfe?

The publication, last evening, of letters between the Chief Justice, Frank Clarke, and Mr. Justice Seamus Woulfe, in which Clarke tells Woulfe that, in his opinion, Woulfe should resign, have caused a major political headache for the Government.

On the one hand, the politics of this situation are fairly straightforward: Woulfe is a villain, who broke lockdown rules, and who has, to date, escaped the sanctions that have cost other, similarly elevated folks, their careers. There won’t be many politicians, after witnessing the fall of Dara Calleary and the defenestration of Phil Hogan, who’ll be eager to go to the mat to defend Seamus Woulfe.

And in that sense, the likely course of events is clear: Unless he resigns, Seamus Woulfe may well become the first Justice of the Supreme Court in Irish History to be cited, impeached, and removed on the grounds of misconduct.

There will, of course, be few tears shed up and down the country if this is how matters proceed. The ordinary voter is not renowned for their attentiveness to matters like the separation of powers, or the impact of such an event on the independence of the judiciary. As far as the public are concerned, Woulfe is just another miscreant fat cat who deserves his fate as much as anybody else in high office who breaks the rules.

But just because we don’t care about those issues doesn’t mean that they don’t matter, or that the potential precedent that is being set here isn’t deeply troubling.

In the event that Woulfe is removed from office, then we will have, for the first time, in Ireland, a member of the Judiciary being removed from office for what is, in essence, a political crime. It is worth noting that both the Chief Justice, in his letter to Woulfe, and Susan Denham, in her report into the matter, make clear that as a matter of law, Woulfe committed no crime. In other words, for all that the public perception might be that Woulfe broke the rules, it is very clear that he did not, actually, break the rules or the law.

Here’s what the Chief Justice says, for example, in his letter to Woulfe (emphasis mine):

Public health regulations in force on the 19th August 2020 made it an offence to organise an indoor social event where the numbers attending exceeded 50 persons (other than in a private dwelling). It was not an offence to attend such an event and accordingly there is no question of you having breached the criminal law.

The difference between politicians and judges, of course, is that politicians answer to you and me, the voters. We can throw them out of office for all sorts of reasons, real, and imagined. If we decided not to elect somebody for the simple reason that they were a fan of Liverpool FC, then we’re entitled to take that (very sensible, if you ask me) decision.

But Judges are different. We can’t just throw them out if we don’t like what they do, and that’s for good reason. If we could remove Judges on the grounds of unpopularity, then they would have an incentive to try to be popular. And a Judge who’s trying to be popular might stop following the law in a given case, and start following the opinion polls instead.

The Chief Justice writes, in his letter, that he is calling on Woulfe to resign for the good of the court, and public confidence in it.

But in doing so, he’s creating a new test for membership of the court, isn’t he? To be on the court, you have to be popular and the public have to like and respect you.

What’s more, he’s putting the Government in a position where they only have one of two equally terrible options: They can either back the Chief Justice, in which case they effectively grant powers to that office which it has never had (the Chief Justice does not, and never has, decide who gets to be on the court), or they can back Woulfe, undermining the unity of the court, and creating an ongoing storyline about disunity on the bench.

Neither option is good, and neither option should be welcomed by someone who cares about good governance. The easiest way out of this mess is for Woulfe to resign. But it seems very clear that he has no intention of doing so, because – in his eyes – he’s done nothing wrong. And doesn’t he have a point?

It is true, of course, that Judges should not be embroiled in political controversies. If a Judge was to come out tomorrow, for example, and say that people should vote Fine Gael, or Fianna Fail, or Labour, then that would be wildly inappropriate. But to the extent that Woulfe is embroiled in a political controversy here, it is not really of his own doing. He did not break the law, and nobody seems to dispute that he did anything more than exhibit a lack of common sense about what dinner invitation to accept.

But what about the Chief Justice himself? When this matter came to light last night, my colleague Gary Kavanagh remarked that actually, he thought the Chief Justice was the one who should be resigning over all of this. At the time, that sounded absurd, but the more you think about it, the less absurd it sounds.

The Chief Justice, by publicly pressuring a colleague to quit on the grounds of a political controversy, has turned the judiciary itself into a political football, and re-written long standing rules about the separation of powers between politicians and judges. He’s created a crisis where there was none before, and put the Government and his own court in an impossible position. It’s entirely reckless.

The public won’t care, of course – in the popular imagination, Woulfe is the baddie here, and it’s as simple as that. But those of us who care about institutions and the country being well governed should be much angrier, this morning, at Chief Justice Clarke.

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