Naomi O’Leary: Golfgate fallout reveals importance of clear rules

Well-made regulations would allow for as little misinterpretation as possible

European Commission president Ursula von der Leyen with former commissioner for trade Phil Hogan. Questions have been raised in Brussels about whether the Commission should have a better process for dealing with ethical infractions. File photograph: Stephanie Lecocq/EPA

European Commission president Ursula von der Leyen with former commissioner for trade Phil Hogan. Questions have been raised in Brussels about whether the Commission should have a better process for dealing with ethical infractions. File photograph: Stephanie Lecocq/EPA

 

The worst thing in politics now is to be too cute.The fallout of the Golfgate affair has revealed the importance of clear rules and a distinction between good faith and bad faith interpretation of them.

Immediately after the story broke, it seemed everybody I spoke to identified a slightly different aspect to the affair that wound them up.

For some, it was the inessential nature of the event: a large social gathering with friends and professional acquaintances in a time when funerals, weddings, and the mere ability to see close family members, have been radically curtailed for most.

For others, it was the apparent brazenness which had led to this event been held at all, which led people to wonder about what level of impunity the politicians involved assumed they had.

But one interpretation stuck out to me: it was the anger over the use of the partition to divide the group of over 80 into two, in such a way that it could be argued that organisers believed they were adhering to restrictions.

This was seen by some as an approach to strictures which was focused on finding loopholes and clever angles, in such a way as to give the go ahead for one’s existing wishes, irrespective of the intention behind the rules.

The impression was that the politicians were just being cute, and it was fatal.

The question of “good faith” – of where an instance of rule-breaking lies, on the scale of “reasonable misinterpretation” to “outright infraction for the purposes of personal benefit” – is crucial to how actions are evaluated.

This was clear in the defences mounted by politicians, many of which hinged on justifying their attendance on the basis that they believed the event was within guidelines.

The now-former EU trade commissioner Phil Hogan also relied on good faith in his attempts to hold on to his job, as he argued that he had only attended on the understanding that the guidelines had been adhered to by the hotel.

Belgian rules make a distinction for people in roles like Phil Hogan’s

When it emerged that he had failed to observe the 14-day period of self-isolation on his arrival in Ireland from Belgium, the good faith defence appeared again.

This time, Mr Hogan argued he believed he was entitled to cut short his self-isolation as he had had a negative Covid-19 test.

Unclear information

This conflated advice intended for two different scenarios: that of ordinary residents who are cleared of a Covid-19 scare, and that of incoming travellers.

But Mr Hogan argued that this misinterpretation of the rules was fair, and if he had made an error, then the fault lied with unclear information. “It’s there in black and white,” he said. “Are the State agencies saying that they are giving wrong information to the citizens?”

Well-made rules allow for as little misinterpretation as possible, and this affair has underlined the importance of clarity in regulations.

Belgian rules make a distinction for people in roles like Mr Hogan’s. Its legislation drawn up at the height of the crisis in March specifies more than 60 categories of workers who are exempt from observing restrictions that apply to others in the course of their work, ranging from weather forecasters, to journalists, to diplomats and those working in the “international institutions” such as the European Commission.

The Commission has made clear that the complexity of rules or the fact that they differ from place to place is no excuse for its members to flout them. In a public announcement after Mr Hogan’s resignation, president Ursula von der Leyen said she expects her team to be “particularly vigilant about compliance” given the “sacrifices” and “painful restrictions” made by European citizens.

In its attempt to curb the spread of the disease, Ireland has opted for a mix of laws and non-legally-binding “advice”.

The advantage of this is that it allows reasonable flexibility, as it is difficult to foresee every situation that will arise.

Downside

But the downside is that it counts on the good faith of individuals, and guarantees a spectrum of interpretation that has the potential to erode a sense of solidarity between citizens when it becomes apparent that not everyone is operating under the same assumptions.

Questions about whether the rules could be improved or clarified are currently being asked of the European Commission, as well as Ireland

The Irish approach is exemplified by the unique path it has taken in following the United Kingdom in introducing a two-week self-isolation requirement that is only loosely enforced. It was the only member of the EU not to jointly ban non-essential travel from outside the bloc while broadly opening up travel with other member states, with additional requirements for specific hotspots.

Questions about whether the rules could be improved or clarified are currently being asked of the European Commission, as well as Ireland.

Fateful dinner

Many of the figures who attended the fateful dinner were able to resign from one post in an act of contrition while retaining their principal job. Dara Calleary is no longer minister for agriculture but is still a TD. Jerry Buttimer stepped down as leas cathaoirleach but remains a member of the Seanad.

Mr Hogan had nothing to resign but his job as trade commissioner. The affair has raised questions in Brussels about whether the Commission should have a better process for dealing with ethical infractions, and more options short of resignation to sanction its members, in a way that could increase accountability, while taking the politics out of the matter.

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