Politicians and judges have only themselves to blame over Supreme Court controversy

It’s a mess. And when parliamentarians and the judiciary start casting the blame of how it all came to this sorry pass, they have only themselves to blame.

The suggestion of a Judicial Council was first seriously made in 1998 when a judge of the Supreme Court and a judge of the Circuit Court became embroiled in controversy over the relisting of a case of a young architect jailed for dangerous driving after killing a young mother.

It has taken 22 years for the Judicial Council to be established, and even now its disciplinary and conduct functions will not be up and running until June of next year at the very least.

There have been plenty of forewarnings over the years including the case of Judge Brian Curtin in 2006. A criminal case against him for possessing pornographic images collapsed, and the Oireachtas commenced impeachment proceedings in the absence of a Judicial Council. The judge resigned before the process had properly got under way.

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And now we find ourselves with a similar procedural impasse. Successive governments failed to enact the legislation. The judiciary did not exactly force the issue throughout that period either, and there was one period where the politicians felt the senior judges were sitting on their hands.

And the only formal instrument available to try and resolve the issue is impeachment, as we note in our lead story.

It is like using a chainsaw to sharpen a pencil. You can’t even begin to compare Séamus Woulfe’s indiscretion with the gravity of the offences for which others might have been impeached. Did he encourage Russian interference in the election? Did he sanction the bugging of the Watergate building? Did he attend a golfing dinner in Clifden whose participants were insensitive to Covid restrictions and should have known better?

There is no doubt that Woulfe’s defence did not instil much public confidence and displayed a lack of awareness as well as a failure to “read the room” when it came to the sentiment of the wider public.

But it’s not helpful to come to the Pavlovian view that Clarke is all right because he is Chief Justice and Woulfe is all wrong.

Clarke commissioned the former chief justice Susan Denham to inquire. She concluded that requesting the resignation of the judge would be “unjust and inappropriate”.

The transcript that was subsequently published – and caused so much trouble to Woulfe – was the record of the conversations with Woulfe on which she based her decision. It must not be forgotten that sometimes the nuance and timbre of a conversation can be lost when reduced to writing.

In essence, Clarke and his colleagues rejected the recommendation of Denham.

In subsequent correspondence, published in full in The Irish Times, Clarke referred to the transcript and the subsequent dealings between Woulfe and other Supreme Court judges as contributing to “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”.

Woulfe is portrayed as taking a benign view of his actions, which is fair enough. But on the other side of the coin, did his colleagues take an overly harsh view of his actions and his defence, that was disproportionate and – dare we say it – an overreaction?

The last paragraph of Clarke’s curt letter to Woulfe is remarkable. He distinguished between his role and his opinion. But given the suasive weight he possesses as the most senior judge in the land, it makes it hard to make that distinction, especially since he has made that opinion very public.

“It is not part of my role to ask, let alone tell, you to resign. Resignation is and can only be for the judge him or herself. Regrettably, however, I believe that I should make clear my personal opinion that, to avoid continuing serious damage to the judiciary, you should resign. I asked you to reflect on this. You have indicated that you do not intend to resign.”

Pat Leahy, in a thoughtful analysis, concludes that impeachment is now a real possibility, although freighted with difficulties.

Woulfe does not come out well from the whole sorry saga. But it could be argued neither does the senior judiciary get a gold star for its performance.

Varadkar confidence motion a mismatch

There was a sense last Tuesday night that the brouhaha over Leo Varadkar’s leaking of a confidential document had run its course. It wasn’t his finest hour. He apologised, He promised it would not happen again.

Why did Sinn Féin pursue the matter? For whatever reason it was a predictable procession which the Government won by 92 votes to 65, as Marie O'Halloran reports.

Sometimes Opposition motions are designed as acts of provocation, to make it impossible for those who are deeply uncomfortable with Government policy to support it. But that was never going to be the case here. There was a lot of bluster within Fianna Fáíl about Micheál Martin’s defence of Varadkar, but that was never going to translate into the hard currency of votes.

Perhaps Sinn Féin thought new revelations would come to light from the Village on the incident. But if the magazine had done well the previous week with its scoop, its revelations on Monday mainly consisted of speculation and surmise and not fact. And the source was the unfortunate Dr Maitiú Ó Tuathail, who had certainly bigged up his relationship with Varadkar.

Village itself accepted there was an element of that but still claimed there were at least 10 encounters during 2019.

That claim was shredded by Varadkar last night when he said that on the dates claimed, he was in Brussels (twice), in Barcelona, and out of Dublin on business. Furthermore Paschal Donohoe said he never met Ó Tuathail in the company of Varadkar. Simon Harris said the same.

Perhaps Sinn Féin thought the ‘old boys’ network’ was worth pursuing as a strategy. And so Mary Lou McDonald and all her colleagues repeated phrases such as ‘insider politics’, ‘cosy club’, ‘old boys network’, ‘entitled politics’ ad nauseum.

On the other side we had relentless Sinn Féin bashing led by Heather Humphreys.

Varadkar’s own speech tried to recover the reputation of Ó Tuathail after he distanced him so humiliatingly the week before. He also used it to have a prolonged dig at Village Magazine and its ‘trumped up” allegations, claiming finding the truth was not its objective.

Thee was one especially harsh paragraph: “We’re not immune from the corrosive forces experienced in other established democracies: fake news, conspiracy theories, the far right, far left, unregulated fringe publications, and unverified social media – grievances and score-settling in spheres masquerading as journalism.”

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Playbook

The main business in the Dáil today includes a Private Members’ Bill from Independents looking for more support for regional airports, and the passage of the new omnibus Brexit Bill.

In the Seanad, there will be statements to commemorate the Jadotville Massacre in the Congo in 1961.

Paul Reid will be before the Health Committee talking about the HSE’s winter plan.

The all-party media committee is looking at the future of broadcasting and how the media has been impacted by Covid-19.