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Shane Ross: Golfgate is proof that judicial appointments are infected by political patronage

Shane Ross analyses Seamus Woulfe’s account of the recent Golfgate controversy and has a few things to say.

Shane Ross

MR JUSTICE SEAMUS Woulfe’s future may be hanging by a thread today. He has been accused of many things, but he cannot be faulted on one: honesty.

The transcripts of his interview with former Ms Justice Susan Denham last month reveal a man willing to blurt out the truth, with a glorious disregard for the implications for colleagues, whether in politics or on the bench.

Some of his replies give an inkling of the real relationships between politicians and judges. It is not as distant as we are often led to believe. Judges are not “hermits” as we are sometimes told.

The inner-circle

When talking about their encounters, Seamus addresses the issue: as Attorney General he was organising the Kings Inns dinner, celebrating his entry to the noble band of  Benchers.

The Benchers, a group of elite judges and senior barristers, urged him not only to change the date to suit the then-taoiseach Leo Varadkar but to invite as many ministers as possible. He obliged and – in his own words – the dinner was “flooded with ministers”. 

There were no Chinese walls that night. Both groups, judges and politicians, were keen as mustard to meet and socialise. Every year there is a Bar Chairman’s dinner with similar interaction between judges and politicians.

Seamus pointed out to his interviewer, Susan Denham, that he recalls seeing her at the same table at another dinner with the Minister for Justice, Frances Fitzgerald. She helpfully responded that there was more than one! Woulfe reveals that in the 2019 Oireachtas golf outing former minister Noel Dempsey was there with a relation, who was a serving judge.

Are we meant to believe the myth that our judges are pillars of purity, that we rarely see them in the company of politicians, and that their social life is non-existent? I well remember seeing a former Chief Justice Liam Hamilton, regularly enjoying an evening in the Dáil bar during his term of office back in the late 1990s.

As long as judges’ promotions (and consequently their pay packets) are in the hands of politicians, there will be the public perception of a lack of distance.

The whole truth

Several powerful people will not be grateful to Mr Justice Woulfe for his forthrightness in his evidence to Ms Justice Denham. Top of the list will be the Chief Justice himself, Frank Clarke. Woulfe reveals that Clarke gave him the go-ahead for his attendance at the golf outing, according to transcripts released:

‘Frank, listen because I’m new at all this I just want to check with you something.’ And I said, ‘I’ve been invited to the Oireachtas Golf Society outing. I don’t see anything, I don’t think there’s anything wrong with it. ‘I emphasised that it was a non-party political event. And he immediately said to me, ‘I don’t see any problem with that.’ Now, in fairness to him, I didn’t go into details about what socialising or whether there would be dinner or not, but I’d be amazed if he didn’t know that there was likely to be some form of eating.’

His admission that neither of them saw a problem, begs the question of why neither asked about the possibility of a dinner afterwards. Presumably, judges and the former Attorney General were, by now, all so used to attending dinners with their chums in the Oireachtas and ministers in attendance, that they did not question the desirability of such socialising in the context of the separation of powers and perception of impropriety.

Woulfe says he “would be amazed if he [Clarke] didn’t know that there was likely to be some form of eating”.  So would I.

Former Taoiseach Leo Varadkar felt forced to deny Woulfe’s claim that Varadkar had insisted on Minister for Agriculture Dara Calleary’s resignation for the sins of Golfgate.

It should not go unnoticed, that Woulfe was Varadkar’s former hand-picked Attorney General. The closeness between the two institutions of the state, is set to continue. 

At present judges are selected through a shared effort divided between judges and politicians.

The wheels of power

Applicants apply through the Judicial Appointments Advisory Board (JAAB) which is dominated by the judges. The Board in turn, sends a list of qualifying applicants up to the minister for Justice, who chooses from a normally longlist of candidates.

There is nearly always a politically acceptable name on the list.  There is an extraordinary success rate for applicants with an association with the government of the day. There is an equally extraordinary failure rate for those lawyers applying whose political party of choice is out of office.

The judiciary and the post of Attorney General are infected by political patronage.

Seamus Woulfe himself is a judge with an uncontested political pedigree. He was chosen by Leo Varadkar as his attorney general. He had an undisputed track record as a Fine Gael activist in North Dublin. He was always close to Fine Gael politicians and trusted by Fine Gael cabinet ministers.

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He was later chosen as a judge by a highly politicised selection system. The selection of judges is a process that is too important to be left to either judges or politicians. A combination of both, as at present is the worst of all worlds.

Shane Ross is the author of “ In Bed with the Blueshirts” to be published by Atlantic Books on October 26. It contains more material about appointments to the Judiciary in Ireland.

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