At the opening of Dáil proceedings in the National Convention Centre on Tuesday Ceann Comhairle Seán Ó Fearghaíl issued a stern warning to TDs not to comment on the escalating controversy over Supreme Court judge Mr Justice Séamus Woulfe.
If they do so, he warned, it might “act as a serious impediment to their ability to discharge their important constitutional functions”.
Mr Ó Fearghaíl ’s warning was itself an acknowledgment that the affair has escalated to the most serious degree possible, where impeachment proceedings before the Houses of the Oireachtas – the nuclear weapon of political-judicial relations – is now a live possibility.
Senior political and legal sources expressed dismay at the deterioration of relations between Mr Justice Woulfe and Chief Justice Frank Clarke, to the extent that the most senior judge in the State has now repeatedly told one of the judges of its highest court that he should resign.
Many believe that Mr Justice Woulfe has managed the controversy disastrously. Some say Chief Justice Clarke has overreacted. But nearly all agree it is to the political arena that the decision now falls as to where to go from here.
Few relish the prospect of deciding to remove a judge from office for the first time in the history of the State. Many believe the punishment does not fit the circumstances. But the Chief Justice’s stance has put the politicians in a position where they must either back his judgment, or ignore it. Few believe they can do the latter.
How does the Oireachtas remove a judge? Slowly and carefully.
President’s role
Any TD can seek a motion to remove Mr Justice Woulfe from office for “stated misbehaviour”. Taoiseach Micheál Martin is to call a meeting of party leaders but any TD can put down a motion – a move that some are now contemplating and which would force the Government to make a decision.
No definition of stated misbehaviour is offered, leading to speculation that a judge who was charged could seek to have the process stopped by a judicial review, on the grounds that the charges against him did not amount to misbehaviour.
Legal sources, however, are sceptical that the courts would interfere to this degree in the affairs of the Oireachtas. Under the Constitution if the motion is passed by a majority in both Houses of the Oireachtas, President Michael D Higgins will then remove the judge from office by signing an order.
However, the process for which the Oireachtas might make such a decision is complex and time-consuming. It is not simply a matter of having a vote in the Dáil and Seanad.
Under Dáil standing orders, if a member of the Dáil lodges a motion for the removal of a judge under article 35, the Dáil can either reject the motion, or can vote to set up a special committee for the purpose of reporting on the issue to the House.
Terms of reference
The Dáil must select a chairperson and committee members and terms of reference for the committee which will hear evidence on the “stated misbehaviour” of which the judge is accused. It will conduct its proceedings in private, including hearing witnesses, except where the judge requests otherwise and the committee decides to accede to this request.
However, Dáil standing orders are clear: it is not the committee’s job to decide on anything, merely to make a report to the Dáil for the purposes of the vote. “The select committee shall make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same,” according to standing orders.
Once the report is completed, the matter then goes before the Dáil and Seanad. However, it is not a normal Oireachtas debate. Standing orders warn of the need to observe fair procedures, and the judge, or his legal representatives, would have a right to address the Dáil or Seanad before any vote.
According to Labour justice spokesman Brendan Howlin, recognised as an authority on Dáil procedures and rules, no whips or party positions would be permitted.
Bar Council
This protracted process is viewed by the Government with horror; even many Opposition TDs have little stomach for it. Many TDs, especially but not only in Fine Gael, privately expressed some sympathy for Mr Justice Woulfe. But others count the episode as another illustration of Ireland’s “golden circle” and may move against Mr Justice Woulfe even if the Government does not. Whatever side they’re on, most also confessed to a feeling of inevitability about where the process is going.
Few believe he can remain as a member of the Supreme Court, though most hope they are not called on to adjudicate on his removal.
Legal sources say it is likely that a way back to practise as a barrister would almost certainly be found for Mr Justice Woulfe if he decided to quit the bench.
A rule of the Bar Council that former judges could only practise in courts higher than the one over which they had presided is not legally binding, the High Court held in 2016 in a case taken by former judge Barry White. Mr White went on to practise as a criminal law barrister.
Sources say there would be “basic compassion for Séamus in these circumstances” among his fellow lawyers and that he could resume practice in the courts outside of the Law Library if he wished.
