Golf gate and judicial misbehaviour

           Dr David Kenny, Trinity College Dublin

 

Golfgate has been said by many to be a potential watershed moment in terms of accountability in Irish public life. The scale of public anger has led to many apologies and resignations, most notably of the Minister for Agriculture and EU Commissioner Phil Hogan. This has been denounced by some commentators as mob mentality. This is a strange allegation when it relates to public representatives, who are supposed to be answerable to the people.  

 

However, such concerns have at least some more force when it comes to the independent judiciary, and the still-unresolved question is the fate of Judge Seamus Wolfe, former Attorney General, who remains in office. Judges are not accountable to the public in nearly the same way, being by design largely insulated from public pressure.

 

In the face of such widespread public anger, should Judge Woulfe keep his job? This question is hard to answer, not least because we lack clear guidance on judicial standards of conduct in Ireland. 

Removing a judge

There are only two possible ways that Judge Woulfe can be removed from office: persuasion and impeachment. Judge Woulfe can resign his office, but only he can do this. He might, by public pressure or informal censure, be persuaded to so, but he cannot be compelled. He can, however, be impeached by the Houses of the Oireachtas. Under the Constitution, if both houses vote by majority to remove him for “stated misbehaviour”, his judicial tenure ends. 

 

Movement on either of these fronts now awaits a report on his conduct. Last week, the Supreme Court took the unprecedented step of asking former Chief Justice Susan Denham to prepare such a report. She is in an unenviable position, as, in the absence of clear guidelines, she will have to use her own judgement on what standards Judge Woulfe should be held to. Her report might add to or reduce pressure for him to resign; it might pave the way for impeachment or make it much less likely. Only time will tell.

 

Political entanglements

There are, it seems to be me, two major questions about Judge Woulfe’s conduct. One is the question of whether Judge Woulfe behaved appropriately in attending the event at all, given its political nature. The judiciary is supposed to act independently of the political branches, and such close social interaction with politicians raises questions.  

 

There has been no suggestion that anyone at the event was trying to influence Judge Woulfe’s future judicial actions, compromising his impartiality as a judge. But it is equally important that the judiciary avoid even the appearance of impartiality, bias, or excessive political connections. Writing yesterday, Laura Cahilane and I note that Ireland has no formal rules or guidelines on appropriate judicial socialising with politicians, though many other countries do.

 

An adverse conclusion from Judge Denham on this point might persuade Judge Woulfe to resign. But it seems unlikely that, in the absence of any clear guidance given to judges, this misconduct that would amount to “stated misbehaviour” and be grounds for removal. 

 

Breaching health advice

The second question is whether Judge Woulfe’s attendance at (or failure to leave) the Golf Society dinner, in breach of public health advice, could constitute grounds for removal. It is hard to say. There is no definition—in the Constitution, in case law, in statute—of what constitutes “stated misbehaviour”.

 

Criminal misconduct would be obviously disqualifying for judicial office (though very minor “regulatory” offences might not rise to this standard). But Judge Woulfe broke no laws. If a legal wrong was committed under our Covid-19 regulatory regime, it would be by the event’s organisers. This is in large part a result of that fact that we have, in our Covid-19 response, chosen not to put the force of law behind most of the public health measures we think are important. Relying on social expectation and pressure, rather than law, for conformity may be a good public health strategy. But it means that Judge Woulfe’s behaviour, even if clearly violating public health advice, is categorically not a crime. 

 

Non-criminal misconduct could also constitute stated misbehaviour. But we would probably expect that such misconduct would relate the judicial role, or undermine the administration of justice by this person. Is this the case with Judge Woulfe?

 

It is hard to say exactly why his conduct makes him unsuitable to be a judge. His actions did not relate directly to his judicial role. They might call into question his judgement, but how, it might be asked, do we see this error in judgement mapping on to his future judicial decision making? Does this connect to his performance deciding questions of the law on the Supreme Court, and if so, how? It is not self-evident. 

 

Public Trust

More generally, we could fairly wonder if Judge Woulfe has lost the trust of the public. But removal or resignation for this reason this creates a potential problem: judicial removal is hard precisely to ensure judicial independence and to try to make sure that public or political opprobrium (for conduct that does not rise to stated misbehaviour) is not something that influences judges in their decision making. 

 

If Judge Woulfe is removed, by persuasion or impeachment, some might fear that it sets a dangerous precedent. If he stays, others believe this will undermine the authority of the Supreme Court and public faith in the administration of justice. Both these are plausible consequences of these each outcome, though I am not sure either is likely. Since this controversy does not relate to Judge Woulfe’s judicial conduct, his removal or resignation in this instance would not necessarily create a problematic precedent. At the same time, the position and judgments of the Supreme Court—and the individual judges of that Court—do not receive much public scrutiny, and it seems unlikely to me that this would now change because of Judge Woufe’s continued presence. 

 

But I might be wrong in either of these suppositions. At times of great political upheaval such as this, it is very difficult to see how events will play out, how our expectations that might have held true in the past will now be upturned. For the time being, we wait for the Denham report. 

Dr David Kenny is an Assistant Professor of Law at Trinity College Dublin, where he teaches and researches Irish and comparative constitutional law. He is a member of the COVID-19 Law and Human Rights Observatory.

 

Suggested Citation: David Kenny, 'Golfgate and judicial misbehaviour' COVID-19 Law and Human Rights Observatory Blog (2 September 2020)

 

http://tcdlaw.blogspot.com/2020/06/public-accountability-in-pandemic-covid.html

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