Woulfe controversy: Resolution hampered by absence of clear procedures

The Supreme Court’s anxiety for a speedy resolution to the controversy arising from Justice Séamus Woulfe’s attendance at the Oireachtas golf dinner remains hampered by the absence of a clear procedure for dealing with such issues.

Former chief justice Susan Denham, in her report on the matter, recommended an “informal resolution” process, but there are no defined parameters for that. Such a process is dependent on the voluntary participation of the affected judge and on an agreement being reached that is acceptable to the judge. Even where such an agreement is reached, it is not binding.

In relation to Woulfe, the process appears to have run into difficulties from the first meeting under it. When the judge met three of his Supreme Court colleagues last Friday, he was taken aback by how they proposed the matter be resolved. While details of the proposed resolution have not so far been disclosed, it is understood he expected a more straightforward method than was proposed.

The judge was to consider his response before a meeting on Monday, this time with the Chief Justice, Justice Frank Clarke, at which it was expected he would outline his response.

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That did not happen because, late on Sunday evening, Woulfe requested that this meeting be deferred. It was put off until Friday but, on Tuesday evening, a brief statement issued on behalf of the Chief Justice said Woulfe had requested a further postponement on medical grounds, which was granted. The meeting is now scheduled for October 13th.

The Chief Justice’s statement stressed he had “emphasised to [Woulfe] the urgency of bringing this process forward”.

Public trust

The benefit to the Supreme Court of finalising this matter is clear. It has cast a shadow over the court since August. The Denham review expressed the view the judge broke no law by attending the golf event, and that seeking his resignation would be unjust and inappropriate. Former chief justice Susan Denham was also of the opinion he had failed to consider whether his attendance at a celebratory dinner in a public place in the middle of a pandemic might be an impropriety, or be considered by members of the public as such, and said in her opinion he should not have attended the golf dinner. The content of the since-published transcript of the meeting between Woulfe and Denham has added to concerns that the controversy has damaged the public perception of the highest court in the land.

When he met Denham last month for her review, Woulfe was anxious that the matter be resolved as soon as possible, noting the new legal year opened on October 5th and he was listed to sit for the first time on the Supreme Court bench on October 6th. That listing was changed in the days before the Denham report was published, and the updated Supreme Court diary still contains no listing of a Supreme Court bench including Woulfe.

The core difficulty for the Supreme Court in resolving the matter is that it has effectively had to develop an ad-hoc response. Its initial response of seeking the Denham review was clearly an effort to address public concern about the judge’s attendance, but the court then faced a problem where it had arranged a non-statutory review that it could neither implement or publish. It was determined the review should be published, and the Judicial Council became the vehicle for that.

Where next?

The problem for the court now is what happens next. It has commenced the “informal resolution” process as recommended by Denham. Although that has traditionally effectively meant a “dressing down” or reprimand, the Supreme Court’s operation of it in this case may be influenced by provisions of the Judicial Council Act dealing with informal resolution of “complaints” against judges. Those provisions have yet to be commenced and cannot be applied to conduct that predated them. For that reason, and because there is no complaint against Woulfe, they are not analogous to his situation.

The Supreme Court may nonetheless be looking to section 61 of the Act as providing some guidance to assist it in this matter. Section 61 concerns referral of a complaint made against a judge for resolution “by informal means”. It provides that a “designated” judge may appoint not more than three judges from the same court as the affected judge, to seek the resolution of the complaint by informal means. Resolution requires the consent of the complainant and the affected judge. Answers given by either in the process of trying to resolve the complaint cannot be communicated to anyone outside those seeking to resolve the complaint and are not admissible in other proceedings. The complaint cannot be resolved by financial compensation. If a complaint is resolved by informal means, a report with details of the resolution will be provided to the Judicial Conduct Committee and no further action taken. If the complaint is not resolved, the designated judge will provide a report to the committee, outlining the reasons why.

Whatever happens at next week’s meeting, there is at least one thing all involved agree on – the matter has to be resolved sooner rather the later.