Stephen Collins: Supreme Court the architect of its own misfortune

Irish public life has come to a sorry pass when the institutions of the State appear to be gearing up to impeach a Supreme Court judge whose offence was to attend a dinner during the summer lull in the Covid pandemic.

The Supreme Court has dragged itself into disrepute by the way it has handled the Séamus Woulfe affair and washed its dirty linen in public. If the Government follows suit and institutes impeachment proceedings at the behest of their lordships it will set a dangerous precedent that could come back to haunt Irish democracy in the years ahead.

Responsibility for the current mess lies squarely with the Supreme Court itself. It set up a process to examine Woulfe’s attendance at the infamous golf dinner in Clifden but, notwithstanding the findings, the judges went on to make his position on the bench untenable.

It is worth recalling that former chief justice Susan Denham found in her detailed review of Woulfe’s behaviour that no breach of law had been involved and that it would not be fair or in accordance with due process for any further action to be taken against him.

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“In the reviewer’s opinion, based on the evidence and submissions she has received, she is of the view that Mr Justice Woulfe did nothing involving impropriety such as would justify calls for his resignation from office. Such a step would be unjust and disproportionate.”

Instead of accepting this finding as a basis for resolving the issue the Judicial Council released transcripts of the meetings between Denham and Woulfe. The move clearly put pressure on him to resign and the process continued when he met two members of the Supreme Court and the president of the Court of Appeal.

It is hard to avoid the conclusion that some members of the Supreme Court decided that, regardless of Denham’s carefully worded conclusions, they needed to rid themselves of someone who had become an embarrassing colleague. The fact that the initial media reports of the dinner may have given a misleading impression of what had actually occurred did not seem to matter to Woulfe’s judicial colleagues.

In his recent novel Kossuth Square author Adam Lebor has a devious fictional Hungarian prime minister planning to leak a damaging story about a colleague to a journalist: “The time to frame a story, to shape how it is covered, is when it is first reported.” The journalist agreed: “Once it’s out, it’s impossible to control.”

Political convulsion

The initial framing of the narrative about the golf dinner caused a political convulsion in August which led a nervous Government to force the resignation of then EU trade commissioner Phil Hogan, and cabinet minister Dara Calleary on the basis of the public perception of the event. It appears the Supreme Court judges followed the same logic that perception is reality and decided Woulfe had to go.

His refusal to play along left them in a quandary because, largely thanks to the reluctance of the judiciary down the years to co-operate with government in establishing proper disciplinary procedures, they have no mechanism for forcing him out. They have now tossed the issue into the political arena giving a heavy hint that they would like to see their troublesome colleague impeached.

This is a most dangerous precedent which will have profound implications in the future. Consider what might happen if we have a populist Trump-like government at some future date which takes umbrage at the decisions of a particular judge or set of judges. No judge has been impeached in the history of the Irish State but, if the political system starts an impeachment process over an inappropriate attendance at a dinner, the door will be opened to removing judges on a whim.

The Government should think very carefully about this appalling vista before going down the road. Dumping Hogan and Calleary in a rush to appease a baying media was brutal and unfair, but that is politics. Impeaching a Supreme Court judge takes matters to a very different level. It could even draw the wrath of the EU authorities already concerned with the way in which the Polish government has forced the retirement of judges.

It is somewhat ironic, given that the Irish Supreme Court was represented at the demonstration in Warsaw against political interference in the Polish judicial system, that our judges now require political intervention to rid themselves of a colleague.

It was instructive in recent days to observe the difference in the way the behaviour of the attendees at a golf dinner was handled compared to the inappropriate behaviour of Leo Varadkar in leaking a confidential document. Fine Gael, Fianna Fáil and the Greens rallied around and rightly dismissed as disproportionate Opposition demands that the Tánaiste should resign.

In the Dáil debate Fine Gael speakers, in particular, hammered Sinn Féin hypocrisy with gusto. Having discovered their courage when their own future was on the line it would be a poor reflection on the integrity of the Government parties if they attempt to impeach a judge at the behest of his self-righteous colleagues.