Cry Woulfe – the consequences of the Oireachtas impeaching a judge

Image Credit: Laoise Tarrant

In light of the controversy surrounding Séamus Woulfe, Megan Skinnader explores the process involved in impeaching a judge and why the Oireachtas may be hesitant to do so

Last month, RISE TD Paul Murphy stated he is set to move forward the motion to impeach Supreme Court Judge Séamus Woulfe in response to his attendance of the infamous GolfGate dinner and a number of other Covid-19 violations. According to Article 35.4 of the Constitution of Ireland, a judge ‘shall not be removed from office except for stated misbehaviour or incapacity’. This leaves Justice Woulfe’s fate between a rock and hard place; Leinster house and himself.

Woulfe can decide to resign. This has been the course of action of judges in similar situations previously. Three times in the history of the state have the words ‘impeachment’ and ‘judge’ been thrown around together. Firstly, in 1941, there was a motion of removal of Edward J. McElligott, a Judge of the Circuit Court on the grounds of incapacity which later was withdrawn as he resigned. In 1999 there was a motion of removal considered for Mr Justice Hugh O’Flaherty and Mr Justice Cyril Kelly amid the Sheedy controversy, but again both resigned. Lastly, in 2004, a motion of removal was initiated against Judge Brian Curtin. A report by a joint Oireachtas select committee was set to be presented and debated in the Dáil a few days before he decided to resign.

Despite Chief Justice Frank Clarke’s strong advice to Justice Woulfe to resign, Woulfe has maintained that his actions do not warrant a resignation, describing the situation as “completely fake, overblown”.

With a resignation unlikely, the tricky process of impeachment begins to go through the motions. The trickiness of impeachment lies in that ‘stated misbehaviours’ have never been judicially interpreted.  The vagueness of ‘stated misbehaviour’ is very possibly intentional to maintain judicial independence and ensure judges are not removed for judgements that conflict with the interests of a particular government. This, however, gives no clearer an idea of what qualifies as an impeachable misbehaviour. 

For inspiration, we can look to other countries. The Solicitor General of New Zealand defined misbehaviours as ‘conduct that is so morally wrong and improper that it demonstrates that a judge lacks the integrity to continue to exercise judicial office’. In India, ‘proved misbehaviour’ has been interpreted in the Judges Inquiry Bill as ‘wilful or persistent conduct bringing dishonour or disrepute to the judiciary, failure to perform duties of a judge and/or abuse of judicial office, corruption, lack of integrity or committed an offence involving moral turpitude’. The Attorney General is being consulted and this will then be decided by the Oireachtas. 

A precedent has never been set for ‘stated misbehaviours’ in Ireland. Thus if the motion for removal goes ahead, the outcome will set somewhat of a threshold for which judges may be impeached and for this reason causes the Oireachtas hesitancy. Considering the rise of populist governments and active efforts in Poland and Hungary to undermine the independence and authority of the judiciaries, this is an issue to tread delicately on, especially as the Irish judiciary is renowned for its strong judicial independence. 

In any case, it is the job of the legislature to pass any resolutions to remove a judge. The Irish Constitution assigns this power to the Houses of the Oireachtas and no other body. Chief Justice, President of the Court of Appeal and multiple other judges of the Supreme Court have commented that Judge Woulfe caused ‘irreparable damage to the judiciary’. This may have bearing on the legislature’s decision, but the Courts may only intervene to ensure the impeachment process is fair and are unlikely to take any action beyond that.

Standing Orders state that when a motion of removal of a judge is moved to a House of the Oireachtas, the house may then either reject or appoint a select committee who take evidence. The government have already formally proposed that no further action be taken on the removal, but any TD can initiate the process. It is up to the Oireachtas, not the government. Following the process of taking evidence, the Select Committee must furnish its report to the Dáil where it may be published and presented. A debate would ensue with “due observance by each member of the Constitutional principles of fair procedures”, and “the right of the Judge and his or her legal representatives to be heard prior to any vote on the said Article 35.4.1° motion”. 

If the resolution passes, the Taoiseach notifies the President, gives them a copy of the resolutions and the President then removes the judge in question from office. If the resolution does not pass and no changes are made, we are likely to see the issue repeat. This can be avoided by a constitutional amendment, something considered also in 2002, to switch the process to more like the impeachment of a President. The possible departure from removal by resolution will likely be a welcome change to avoid conflict on the separation of powers.