Tom O’Malley: Golfgate – a plea for rationality and proportionality
Tom O’Malley SC considers golfgate and calls for any backlash or punishment of public officeholders in attendance to be rational and proportionate.
The backstory to what has become known as Golfgate is now well-known. The Oireachtas Golf Society held a two-day outing on 18 and 19 August at Ballyconnely, near Clifden in County Galway. The participants included several current and former members of the Oireachtas as well as some others including a retired broadcaster and a Supreme Court judge. On the evening of the second day, there was a dinner in a Clifden hotel that was apparently attended by about 80 of the participants though, by all accounts, they were divided into two groups in different dining rooms.
It seems to be accepted that this arrangement violated the restrictions on indoor social gatherings then in force because of the COVID-19 pandemic. The public outcry in response to this event has been strong and unrelenting, with calls for any attendee who holds public office to resign from it. This article is not intended as a criticism of those who have strongly condemned the event and the participants. Rather I am approaching the matter as someone with a longstanding interest in punishment policy and practice. My argument in a nutshell is that any penalty, formal or otherwise, imposed on those who attended the event must, as in any other case involving the infliction of punishment, be rational and proportionate.
Let me stress at the outset that nothing I say here is intended to deny or downplay the extent and seriousness of the COVID-19 pandemic. The numbers of confirmed cases and deaths, here at home and worldwide, speak for themselves. Each of those deaths was a human tragedy and, for countless family members and relatives, the experience of loss and bereavement was intensified by restrictions that prevented funerals being held in the normal way. Secondly, I accept fully the need for the social restrictions to which we have all been subject since the pandemic began and to which we will probably remain subject for some time to come. Everyone has suffered to some degree from those restrictions and many suffered very badly indeed in mental, emotional and material terms. Thirdly, I accept fully the need for the restrictions to be properly enforced and for those found guilty of violating any relevant criminal law to be punished appropriately and that, of course, includes being punished proportionately to the gravity of the offence.
Social punishment is often far more severe than any judicially-imposed penalty. In recent years, there has been a great deal of academic research on the collateral consequences of criminal offending. The primary punishment imposed for certain offences, which will typically be a term of imprisonment, a fine or a suspended sentence, is often only part (and sometimes a very small part) of the overall punishment which a convicted person will endure. Further life-changing consequences flowing from the conviction may include loss of employment, loss of home, social ostracization and stigma which, in turn, combine to make it extremely difficult, if not impossible, for the person to rebuild his or her life.
The response to the Clifden golf outing is a good example of social punishment, save that it has been imposed and called for without there being a criminal charge against anyone involved, let alone a conviction. This, of course, is unobjectionable in itself. Disciplinary sanctions and measures are often imposed on employees and others in the public and private sectors, and are also quite common in sporting organisations. However, they cannot be imposed arbitrarily or at the whim of a person in authority. People should not be subject to such sanctions unless they have had a fair opportunity to defend themselves, and any sanction imposed must be both reasonable and proportionate to the gravity of the wrongdoing. There is an extensive body of constitutional and administrative law confirming those basic principles. Proportionality is not just the overarching principle of sentencing in this country. It has also been described by the Supreme Court as a “well-established tenet of Irish constitutional law” (Rock v Ireland  3 I.R. 484 at 500).
For the purpose of what follows, I shall assume that the dinner held in Clifden was in breach of the rules then applicable to indoor social gatherings. It would therefore follow that all those who voluntarily attended did some wrong. The question is what the response to that wrong should be. The first point to note is that, for many of the attendees, there can be no social punishment because they are no longer actively involved in public life. The only ones being punished are those who can be punished, and that is a very small minority. I am far from saying that it is unjust to impose some sanction on those who held public office at the time of the event. But what I am saying, emphatically, is that the sanction should be proportionate to the wrong.
As matters now stand, one attendee, Dara Calleary TD, has resigned as Minister for Agriculture and another, Senator Jerry Buttimer, has resigned as Leas-Cathaoirleach of the Seanad. EU Commissioner Phil Hogan has now resigned, following intense pressure to stand down. Then there is the case of Judge Séamus Woulfe who has recently been appointed to the Supreme Court, having previously served for three years as Attorney General. Should he be pressured to resign or else face removal from office in accordance with Article 35.4 of the Constitution (whereby a judge may be removed for “stated misbehaviour or incapacity” following a resolution by both Houses of the Oireachtas)? I believe that he should not, because such a punishment would be disproportionate.
Article 35.4 of the Constitution provides the only means now available for dealing with a judge accused of misbehaviour of any kind, and it is a very blunt instrument indeed. Either a judge is removed from office or nothing is done (formally at least). The Judicial Council Act 2019 was introduced, after a long gestation period, to address this anomaly. It has a very detailed set of provisions for dealing with complaints made against judges. The possibility of referring the matter to the Minister for Justice and Equality with a recommendation that steps be taken under Article 35.4 to remove the judge from office remains, but there are other options such as admonishment that will be adequate in most cases. Removal from office should be reserved for cases of grave misbehaviour. This is clear from s. 80(3) of the Judicial Council Act 2019. Incidentally, it is not the case that the Bill leading to this Act was “filibustered within an inch of its life in the Seanad”, as Professor David Gwynn Morgan claims in the Irish Times (August 25, 2020). He may have been thinking of the Judicial Appointments Commission Bill. The Judicial Council Bill, although initiated in 2017, went through the Seanad quite quickly and, if I recall correctly, completed all stages in the Dail in less than two hours in July 2019.
Unfortunately, those provisions of the Judicial Council Act 2019 dealing with complaints against judges are not yet in force, although some of the Act’s provisions entered into force as long ago as September 2019, and many others in December 2019. It would surely be unjust and, indeed, irrational if a judge were now to be removed from office or effectively forced to resign when, in a few months time or sooner, there will be a system in place to deal with complaints and allegations of varying degrees of gravity and the possibility of imposing a commensurate sanction where there is an adverse finding against the judge in question. In the case of Judge Woulfe, an apology (which he has already made) or an admonishment would surely be the appropriate response, assuming he is found to have been at fault in connection with his attendance at the dinner in question.
Judges, no less than anyone else accused of wrongdoing, be it serious or otherwise, are entitled to due process and to be dealt with in a rational and principled manner. That includes being given a proportionate sanction where some kind of misbehaviour is adequately proved. In the case of Judge Woulfe, removal from office would, in my respectful opinion, be entirely disproportionate. Bear in mind that this would entail, not only loss of employment and income, but many collateral consequences including the general opprobrium connected with the removal or forced resignation, and the serious impact on himself and his family. All of these matters should be considered when devising a proportionate sanction.
As former Court of Appeal Judge Garrett Sheehan is quoted as saying in the Irish Times (25 August 2020), we must be wary of hounding good people out of office for one serious mistake, and especially where they have relied on the judgment of others for the purpose of abiding by prevailing regulations. Judge Woulfe has already served this country well during his years as Attorney General, possibly the most demanding job, in terms of time, expertise and commitment, that anyone could hold in the public sector. I am convinced that he will be an equally effective and dedicated member of the Supreme Court for many years to come and that it would be a great loss to the country if he were now prevented from serving in that role.
Finally, to mention yet another contribution to the Irish Times (25 August 2020). A letter writer says that it is unthinkable that Judge Woulfe would hear a case involving a challenge to the constitutionality of a law enacted in response to the pandemic. The letter writer is correct. Judge Woulfe would not be a member of the Supreme Court bench hearing such a case. The same routinely applies when any Judge of the Court has had any prior involvement in a case or in circumstances where his or her presence on the Court hearing a case might risk giving the appearance of bias.