Two aspects of Judge Séamus Woulfe’s conduct have come under scrutiny following his attendance at the Oireachtas Golf Society Dinner.
The first is that, as with other attendees, he failed to adhere to public health advice, for which he has been criticised. The second is whether it was appropriate for him, as a judge, to attend this event at all.
The second matter – the appropriateness of judicial attendance at such an event – opens up a question that we in Ireland have yet to fully explore: how wide should the gap be between politicians and the judiciary?
The instructions for the inquiry to be carried out by former chief justice Susan Denham seems to invite her to comment on this question as well.
We expect judges to keep distance from politics. This might be difficult. They may know politicians socially
The judiciary is generally independent of government and the legislature. It must often rule against the State in ways that might be costly, embarrassing or difficult for politicians. Particularly in the constitutional sphere, the judgments of the courts have significant political implications, and we do not want judges to be influenced by political opinion when they decide these cases.
Judges need to be insulated from political pressure, and that is one reason why we make it very hard to remove them from office. It is also why there is a convention in our politics that politicians avoid comment on the judiciary and judicial decisions.
Relatedly, we expect judges to keep distance from politics. This might be difficult. They may know politicians socially, or from past work. But we have to be sure that these relationships are not such that they might compromise – or even appear to compromise – judicial independence.
Grey area
The English code of judicial conduct notes that “judges have to accept that the nature of their office exposes them to considerable scrutiny and puts constraints on their behaviour which other people may not experience”. They should, the code says, “avoid any appearance of political ties – eg by attending political gatherings, political fundraising events, contribution to political parties or speaking within political forums.”
The Scottish code of conduct says that “if, at the time of appointment, a judge is a member of any political party or organisation, such a tie should then be severed”. The Canadian code suggests avoiding, amongst other things, “attendance at political gatherings” and speaks of the “delicate balance” between the demands of their office and those of their private life.
Unlike most other jurisdictions, Ireland has never had a formal set of guidelines on judicial conduct. However, all Irish judges are aware of the conventions and unwritten understanding that they must, at all times, behave in a way which upholds the integrity of the office.
The elephant in the room, however, is that Judge Woulfe was, until very recently, attorney general for the last government
The 2019 Judicial Council Act, under which new guidelines will be drawn up, states that the new Judicial Council must “uphold and exemplify judicial independence, impartiality, integrity, propriety (including the appearance of propriety)”.
This recent incident, and Judge Denham’s conclusion around it, will likely inform these guidelines, and we can hope that in future we might have clearer standards around such conduct. This should benefit both judges, who will have clarity around what is and is not expected of them, and the general public, who will be reassured that there is a set of standards that judges are required to follow.
The elephant in the room, however, is that Judge Woulfe was, until very recently, attorney general for the last government. It was presumably the connections he made there, through his close work with government and in the vicinity of Leinster house, that led him to be at this event.
Legal adviser
The attorney general is the government’s legal adviser. The AG is nominally independent of government, but is hugely politically influential. He or she sits at Cabinet, and their advice often leads to legislative or policy initiatives being altered or dropped. Any legal or policy initiative coming out of government has been subject to AG’s advice, so the AG forms and expresses views on many legal topical questions while in office. The AG also, naturally, works very closely with politicians.
This invites the question: is it appropriate for an attorney general, having worked so close to government, to immediately become a member of the judiciary? This used to be very common, with a tradition that an outgoing AG was given first refusal on an open judicial vacancy. This stopped in 1995, after the then AG was appointed to the position of president of the High Court in controversial circumstances and was forced to resign after two days. Appointment of an outgoing AG has been rarer since then. The last two AGs, however, have been appointed to the Superior Courts and the appointments of Woulfe’s predecessor was controversial appointment due to the fact that it had not gone through the usual Judicial Appointments Advisory Board process.
On one level, an outgoing AG will almost always be an exceptionally qualified candidate for judicial office, with vast legal experience. But they will also, by virtue of their role, have deep political connections, and have expressed firm views on the legality and constitutionality of measures that will often find their way before the courts.
Along with guidelines for conduct, we should consider creating a rule that a person should not be appointed to the Superior Courts until some time has elapsed after their service as attorney general. This would help, perhaps, distance the political from the judicial.