The absence of a statutory system for reprimanding judges probably means that Mr Justice Séamus Woulfe cannot be reprimanded without his consent, according to legal academics who spoke to The Irish Times.
They also said that the controversy, including that caused by the transcript of Mr Justice Woulfe's interview with retired chief justice Susan Denham, has been damaging to public confidence in the State's top court.
Trinity College Dublin graduate Patrick O’Brien, who lectures in law in Brookes Oxford University in England, said he was impressed by how the controversy has been handled to date by the judiciary.
"What the judiciary has done so far mirrors what is done in regard to judicial discipline in other countries, and what is envisaged in the Judicial Council Act," he said.
The Irish Act was passed last year but the structures that it provides for in terms of disciplining judges, including without their consent, have yet to be put in place.
However, the request to Ms Justice Denham to inquire into Mr Justice Woulfe's attendance at the Oireachtas Golf Society dinner last August, and report back to the Supreme Court, mirrored what was envisaged in the Act, he said.
Reprimand
He said that usually in the UK the process led to a judge who was found to have acted improperly quickly consenting to a formal reprimand.
A judge who finds himself a source of controversy “should really want to get his head back out of the spotlight really, really quickly,” said Mr O’Brien, who recently co-authored a book on judicial independence in the UK.
“I think it is a shame that he decided to attend [his interview with Ms Justice Denham] with an eminent senior counsel, and go down the strict legal route, arguing about the burden of proof and so on, in an informal inquiry. I wouldn’t have thought that was getting into the spirit of the thing.”
He said he thought the “big call” was the decision of the board of the Judicial Council to give Ms Justice Denham an indemnity and then publish her report, despite it being a non-statutory one. “They have effectively said, well, sue us then, and that is a big thing.”
The board of the council, which includes the heads of the various courts, including the Chief Justice, Mr Justice Frank Clarke, published the report on Thursday.
On Friday it published some, though not all, of the appendices to the report, including the transcript of Mr Justice Woulfe’s first interview with Ms Justice Denham.
Second interview
A second interview, which he sought after she had given Mr Justice Woulfe a copy of her draft report, has not been published “as it relates to legal argument and submissions on a draft report”, according to a statement on Friday.
It just brings back the idea of judges as an elite that are above the same consequences as everyone else
Laura Cahillane, a lecturer in law at Limerick University, said the controversy has "changed the narrative" in relation to the public's view of the judiciary.
“I think our current Supreme Court have done so much work in trying to open up the court and Frank Clarke made that an aim at the start of his of tenure as Chief Justice.
“But something like this undermines all of that work that has been done, because it just brings back the idea of judges as an elite that are above the same consequences as everyone else.”
The content of the transcript has added to the controversy, because it added to the changed narrative, she said.
“As time passes this saga becomes increasingly unedifying,” said NUI Galway Professor of Law Donncha O’Connell.
“Apart from its implications for the reputation of Mr Justice Woulfe, the transcript and now the [delay in resolving the controversy] are damaging to public trust in the Supreme Court and its members and, more generally, to public confidence in the administration of justice.”
Atonement
An abject and sincere statement of atonement after the Denham review was published would probably have been sufficient to limit the damage caused by Mr Justice Woulfe’s attendance at the Golfgate dinner, had the transcript not revealed that he appeared to question the objective justification for his original apology for having attended.
Prof O’Connell said that Mr Justice Woulfe (58), could be on the Supreme Court bench for the next 12 years, a period during which it may reduce in size owing to the Court of Appeal having been established.
“For that reason and for other reasons, his response to the informal resolution process that has ensued from the Denham review is of critical importance to his own future as an apex court judge, but also to the authority of the Supreme Court itself.”
Ronan McCrea, professor of constitutional and European law at University College, London, said that last week “the view was that Mr Justice Woulfe would get a slap on the wrist, verbally, from the Chief Justice, and just take it and move on.”
If the controversy was now to drag on so as to begin to undermine the Supreme Court, “there could be mild pressure placed on the judge to go for the sake of the institution, but we are not at that stage yet.”
He said it was true that some believed the transcript had added to the negative publicity about the court, but that a judge could not be punished for giving the answers to an inquiry that he thought were appropriate.
