The decision of Chief Justice Frank Clarke on Monday to publish some of his correspondence with Mr Justice Séamus Woulfe over the Golfgate controversy initially provoked "shock and awe", according to a senior counsel.
Since then, however, this has changed to “What is the Chief Justice at?”, according to the barrister.
The move has also provoked a strong reaction among politicians because the letters have triggered a debate about whether the Oireachtas should consider impeaching Woulfe.
For Clarke to write the letter he did, “and then elect to publish it, that is pressing the nuclear button. There is no doubt about that,” the barrister told The Irish Times.
In the correspondence, Clarke expressed the opinion that Woulfe should resign, and Woulfe responded with a detailed account of why he felt he should not do so.
The cumulative effect of everything that has flowed from Woulfe’s attendance at the Oireachtas Golf Society dinner in Clifden in late August had led him to form the personal view that Woulfe should resign, Clarke said.
It had caused “very significant and irreparable damage both to the court and to the relationship within the court which is essential to the proper functioning of a collegiate court”.
This view on the effect on the Supreme Court was, he told the former attorney general, "the unanimous view of all the members of the court (including the ex-officio members)", he said.
The publication of the exchange has led to speculation that a motion might be tabled in the Oireachtas to impeach Woulfe, but also strong doubts that such a move was justified by Woulfe’s behaviour.
The Constitution says a judge “shall not be removed from office except for stated misbehaviour or incapacity and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal”.
Enormous esteem
Clarke is held in enormous esteem, the barrister said, and is one of the State’s best ever judges. Jovial, social, and friendly, he is much-liked by those who appear before him because of his fairness and tendency to “play the ball and not the man”.
“But on the couple of occasions where I saw him where he realised he had been misled by a lawyer, or by an actor in the litigation, he would never take it lying down. He would make his displeasure known in no uncertain terms.
“There was a steel in him always, and I think people are seeing a version of that now, in no uncertain terms,” the barrister said.
When he was appointed Chief Justice in July 2017, Clarke gave an interview to the late Marian Finucane on RTÉ radio, the first sitting Chief Justice to make such a move.
He said it would be naive to think that party politics did not play a role in judicial appointments, especially to the higher courts, though in his case he had become a judge when he was asked “out of the blue” by a Fianna Fáil government to become a member of the High Court.
There were many such appointments, he said. “I think it is a lot less political than people give it credit for.”
He also said he felt the judiciary had not been very good at explaining themselves to the public.
“I do believe in that phrase, you can’t complain if you don’t explain.”
There may have been an echo of this concern for transparency in his decision to publish his correspondence with Woulfe about the reputational damage the Golfgate controversy has caused to the court.
In the letters, Clarke said he had come to his view on resignation because of the cumulative effect of a number of matters and not just Woulfe’s attendance at the Clifden dinner.
These matters included the public reaction to the transcript of Woulfe's interview with former chief justice Susan Denham.
Denham was asked by the Supreme Court to inquire into Woulfe’s attendance at the Clifden dinner. In her report she said that the attendance was a mistake, but that it would be unjust to ask Woulfe to resign as a result.
In his letter, Clarke said he thought it would be more damaging if he had accepted Woulfe’s view of the Golfgate matter, or been seen to be willing “to permit the false impression to be given that I did so”.
Many of Clarke’s admirers, however, are bemused by what he did on Monday, though the above-quoted barrister thought that ultimately Clarke “was justified in pressing the button”.
People in public life resign all the time as a matter of honour, but Woulfe was treating the crisis as “an employment law case”, the barrister said.
Clarke is the Chief Justice, he said, and “basically he has Woulfe thumbing his nose at him”.
The position may be that “Woulfe’s position is untenable, but it may also be unimpeachable”.
A TD, speaking off the record, said the judges hoped that the publication of the letters would cause Woulfe to resign
Arising from the Golfgate controversy, Woulfe is not to be listed to hear his first case until February, and is expected in the meantime to forego his salary.
As matters stand, he will then take up the role he was appointed to by the Government in July.
If Woulfe is still a member of the court come February, the barrister said, then “others will resign in protest. I think that is absolutely inevitable”.
“If the Oireachtas turns up its nose and says, ‘we’re not going down that road’, and that it is a matter for the court, I’m pretty sure other judges will resign.
“I don’t see any scenario where Clarke will sit down with Woulfe, come February. I just don’t see it, after that correspondence. My view is that if Woulfe doesn’t resign, the Chief Justice will.”
A TD, speaking off the record, said the judges hoped that the publication of the letters would cause Woulfe to resign. “But it hasn’t worked.”
Impeachment process
Now the likelihood is that someone will set down a motion to start an impeachment process, though it may well not be successful.
“I wouldn’t say there is an appetite in Dáil Éireann to get rid of him,” the TD said.
“Frank Clarke could stop this. Was he looking for an impeachment process? That was just left hanging. He could say, ‘I was just expressing my personal opinion’. But it’s gone too far now. It’s a mess.”
The decision to publish the transcript of Woulfe's interview with Denham was made by the board of the Judicial Council, which is chaired by Clarke, and the membership of which includes the President of the Court of Appeal, George Birmingham, and the President of the High Court, Mary Irvine, who are both ex-officio members of the Supreme Court.
A sitting judge, speaking off the record, said people could have different views as to how much weight to give to the points made by Woulfe and Clarke in their respective letters.
“But Séamus Woulfe does make the point that quite a number of the problems seem to have arisen from the way in which the Chief Justice has dealt with it, rather than any stated behaviour on his part. That is a very hard point to rebut, really, because it seems to be correct.”
Given that the Denham report, which everyone accepts, had found that it would be unjust to ask Woulfe to resign for having attended the dinner, then what “stated behaviour” remained that could justify Woulfe being impeached? the judge said.
“Not getting on with Frank Clarke is not stated misbehaviour, that’s for sure. That’s a certainty.”
The crisis, the judge said, had gotten to a point where “it doesn’t make sense”.
Removing Woulfe now would be an abuse, and if it happened, there was a good chance Woulfe could successfully take a case to the European Court of Human Rights, in Strasbourg. “It would be a blot on the country for a very long time.”
“Please can we get Susan Denham back to adjudicate on this impasse, or some similar type of mediation process?”
The only judge ever to be impeached in these islands was the Irish High Court judge Sir <a class="search" href='javascript:window.parent.actionEventData({$contentId:"7.1213540", $action:"view", $target:"work"})' polopoly:contentid="7.1213540" polopoly:searchtag="tag_person">Jonah Barrington</a>, for embezzling court funds for his own use
Professor Donncha O’Connell of the School of Law in UCG said he found it “perplexing” that the Chief Justice had published the correspondence “in circumstances where he had no reason to believe that it would bring about the resignation of Mr Justice Woulfe.
“It was clearly going to become a matter of heightened political controversy, with no guarantee as to the outcome, and with all sorts of consequential hazards for the Supreme Court and the judiciary more generally.”
For all sorts of obvious reasons to do with judicial independence, he said, the bar for removing a judge for “stated misbehaviour” should not be set too low.
Embezzling court funds
The only judge ever to be impeached in these islands was the Irish High Court judge Sir Jonah Barrington, who was impeached in 1830 for embezzling court funds for his own use, according to Dr Patrick O'Brien, a senior lecturer in public law at Oxford Brookes University in England, and co-author of a book on the politics of judicial independence in the UK.
The idea that Woulfe would be impeached as a result of Golfgate and Woulfe’s response to the situation he has found himself in, “is absurd,” the academic, who is from Dublin, told The Irish Times.
“Honestly, I was just speechless on Monday night. I was just speechless. I could not believe what I was seeing,” said a Government deputy, speaking off-the-record about watching the news and hearing what the Chief Justice had done.
“I mean, what the hell are they doing?” the deputy said. “This is just unbelievable and astonishing. It really is.”
The deputy did not want to discuss the actions of Woulfe, even off-the-record, because of the possibility that members of the Oireachtas may, if an impeachment process is set in train, end up having to decide on the basis of the evidence presented whether to vote for Woulfe’s removal from office.
However, this did not apply to the actions of the Supreme Court in their management of the Woulfe affair.
“I mean, what is the position if the Oireachtas does nothing? Then what are the judges going to do? Had they thought that through?”
“There’s no appetite or energy in the Oireachtas for this fight,” said another TD. “We might just say, ‘sorry lads, this is your problem’.”
When the Golfgate controversy erupted, the judges' negative view of Woulfe's appointment hardened
A number of people who spoke to The Irish Times raised the point that the Denham review concluded that while Woulfe had made a mistake, it would be disproportionate to ask him to resign.
“But the findings don’t seem to satisfy their lordships,” said a senior politician, speaking off-the-record.
“That’s shifting the ground in a way that is really unfair,” the deputy said. “If the Chief Justice wants to talk about other factors, it seems to me that there are other factors at play here, and that those factors may be the appointment of Judge Woulfe in the first instance.”
Part of the mix of what is happening may be that the members of the court did not approve of the Government’s appointment of Woulfe, who was attorney general up to shortly before his July move to the State’s top court, the deputy said.
Then when the Golfgate controversy erupted, the judges’ negative view of the appointment hardened.
“But judges can’t decide by themselves who can sit in the court. Judges don’t make up the composition of the court. Judges can’t say, we don’t like a colleague, so we are going to gang up on and get rid of him.”
Application for a job
After the general election this year, the then attorney general, Woulfe, submitted an application for a job in the Supreme Court to the Judicial Appointments Advisory Board (JAAB).
He told the then taoiseach, Leo Varadkar, about the application, but also that he would be happy to stay on as attorney general in the new government.
In the event Paul Gallagher SC was appointed Attorney General. Soon afterwards, Woulfe was appointed by the Government to the Supreme Court, having been approved for the position by JAAB.
“Woulfe was the recommended choice of the JAAB, chaired by no less a figure than the Chief Justice himself,” said the senior politician.
“So he was suitable for the Supreme Court in June, when the JAAB made the recommendation.”
The two ex-officio members of the Supreme Court, Birmingham and Irvine, are also on JAAB.
On Friday The Irish Times reported that applications from sitting judges for the job on the Supreme Court were not brought to the attention of Cabinet when Woulfe was nominated.
The other applications did not go to JAAB, because the applicants were sitting judges. Clarke had a hugely successful and lucrative career as a barrister before becoming an admired and respected judge, and had no family connections to the law to help him on his way.
He told Finucane that he was born in Walkinstown, Dublin, and that his father, a customs officer, died when he was only 11.
“My mother went back to work as a secretary. She did a lot to put me through college, put up with me deciding to go to King’s Inns as well, and face a career where I was probably not going to make too much money for a while.”
He studied maths and economics at university while also studying law in King’s Inns.
His period as Chief Justice is due to end late next year when he reaches the retirement age for judges, which is 70.
