November 2020: The Supreme Court of Ireland

On August 19th, a group of Irish politicians as well as banking, legal and PR people assembled for the Oireachtas (legislature) Golf Society dinner in Clifden, Co. Galway. The event flouted Covid-19 restrictions and raised the ire of people throughout Ireland, who had been making huge sacrifices for the sake of public health for five months. Within 24 hours of the news breaking the following day, the Minister for Agriculture’s head rolled: Dara Calleary had participated in the cabinet meetings which authorised the Covid-19 guidelines and yet he broke them. However, the logic of sanctioning the public figures who attended the golf dinner could not be applied to each in the same way.

Some were elected representatives, some were senior officials. The presence of two people, in particular, became (and remained) controversial long after the dinner: European Commissioner Phil Hogan and Supreme Court Judge Séamus Woulfe.

Phil Hogan held the trade brief at the European Commission, a crucial portfolio at any time and particularly so now that our nearest neighbour is leaving the EU. Hogan’s role in Europe was independent of the Irish government. So when, on the weekend following what became known as ‘golfgate’, Taoiseach Micheál Martin and Tánaiste Leo Varadakar urged Hogan to consider his position, he ignored them.

It was in Brussels that Hogan had to provide a full account of himself. European Commission President Ursula von der Leyen made an extraordinary plea to Hogan to engage with the media (he had been hiding behind a spokesperson). She also demanded that he provide the complete itinerary of his summer visit to Ireland. Journalists soon identified gaps in his account—places he had visited that were not mentioned. By August 26th, Hogan resigned as the European Commissioner for Trade.

Hogan’s downfall begs the question whether it was his attitude towards accountability and his concealments that did more damage than his decision to attend the golf dinner. It is an important question because Judge Woulfe made (and continues to make) comparable mistakes in his handling of the fallout from golfgate.

Until this June, Séamus Woulfe was the Irish Attorney General. Then, in July, he was appointed a Supreme Court Judge. Those roles involve a fundamentally different relationship with politicians. Whereas the Attorney General is in contact with politicians almost every day, judges instinctively keep away from political circles. There is no law in Ireland requiring a separation between judges and politicians in their social life. Instead, there is a tacit assumption that judges would be wise to act with discretion at all times. The aggregate of legal opinion expressed in the media on Woulfe’s case inclines to the view that Woulfe should have adhered to that convention.

In Woulfe’s execution of his previous role, the opinionating that accompanies politics appears to have rubbed off on him. While still Attorney General in 2018, he rather startlingly called a legislative bill sponsored by an independent minister ‘a dog’s dinner’. Is that not a rather apt description for the dinner Woulfe saw fit to attend in Clifden?
Woulfe did apologise for his attendance, but his apology fell short of taking responsibility for his actions: ‘my understanding was that the organisers and the hotel had satisfied themselves that they would be operating within Government public health guidelines’. Given that his new job is to form judgements based on the law that have far-reaching consequences for Irish citizens, his misjudgement in attending the dinner has not inspired the body politic with confidence in him.

Former Chief Justice Susan Denham held an enquiry to make recommendations on Woulfe’s case. It was an exceptionally difficult case to immunise from political circumstances since it occurred after several politicians had been forced to resign or accept demotion for attending the dinner. No legal professional, however flintily independent, could could have found the process easy. Moreover, there is the matter that Woulfe retained a barrister for his discussions with Denham and it was necessary that she was indemnified against libel.

If all of this were not bad enough, when Woulfe met with Denham he proceeded to dig himself deeper into the hole. Woulfe told Denham that he considered the media treatment of the event to be ‘completely fake…it’s like a Ku Klux Klan now’. Is such language not reminiscent of a certain perch in Washington DC? In a letter to the Irish Times legal and media commentator Colum Kenny argued that Woulfe ‘should not be allowed to hear any case involving the media as there would always be a clear perception of bias’. The nub of this claim is the broader reality of a supreme court judge who lacks the public’s confidence. That is attributable not only to his attendance at the ill-fated dinner. Woulfe has repeatedly been indiscreet, in word and deed. How can it be tenable that a supreme court judge remains on the bench given that a significant segment of Irish society has grounds to repudiate his authority? 

Denham recommended that there is no case to remove Woulfe from the bench. (Had the Judicial Council Act 2019 been enforced by now, the judiciary would have been empowered to remove a colleague; as things stand, they do not). Even so, the political fallout for the court has been very considerable, and the loss of public confidence in the judiciary enormous.

On foot of Denham’s published recommendations, the Chief Justice of Ireland, Frank Clarke, sought to meet Woulfe to conclude the matter. During his tenure, Clarke has led an attempt to alter the perception of Ireland’s judiciary as being elitist and removed from the people. How delighted he must have been about golfgate and the fact that on October 15th Woulfe postponed his meeting with him for the fourth time. Now Chief Justice Clarke has made clear he will ‘make alternative arrangements to convey his final views on the process to Mr Justice Woulfe’.

Scandals tend to last about a week in the news cycle. The longevity of this fiasco is indicative of how thoroughly the Supreme Court of Ireland has been devalued by it. The damage resulting from it will endure for years.