The case of Enoch Burke descended into farce yesterday with the resignation of two members of the disciplinary panel considering his case, on foot of what the Irish Times described as “issues arising in a legal challenge brought by Burke”.
As regular readers know, yours truly has never shied away from criticising Mr. Burke’s handling of his case, or his attitude to the authority of the courts. However, the matter of the panel considering his dismissal from Wilson’s Hospital School is a separate matter entirely.
We are of course legally restricted here in terms of what we might say, and the inferences we might draw from certain events. But nothing prevents us from setting those events out and allowing people to draw their own conclusions:
In short, Mr. Burke was taking a case alleging that the makeup of the disciplinary panel against him was irretrievably and hopelessly biased, and that it should not therefore be permitted to rule on his case.
Before this argument could be heard, the court was informed by solicitors for the disciplinary panel that several of its members had resigned on foot of issues raised by Mr. Burke. As I say, you can draw from that whatever inference you may – and I don’t think the inference is hard to discern.
Then, having told the court that some members of the disciplinary panel were resigning, legal representatives told the court that Mr. Burke’s case over bias “was now moot”. In other words, it said that because the members in question had resigned, there could no longer be any legal case to argue that the panel might be biased. There was then a reference to the court making “any orders for costs it deems appropriate”. On this we might note that in general if you are the bringer of a case (as Mr. Burke is in this instance) and the case is moot, you will bear the costs. That is not perhaps what was being suggested here, but again, inferences might be drawn.
There is one obvious conclusion from all of this that we might draw: If Mr. Burke alleged that the panel was biased, and several members of it resigned on foot of issues he raised, then we can conclude that his case on this issue was strong.
We can also say something else: Public opinion has been strongly divided on the question of how Mr. Burke has conducted himself in relation to this entire matter; but there should be no public division whatsoever in relation to the conduct of the school, which is every bit as responsible for the current farcical situation as anyone else is.
First, in terms of the question of the use of pronouns, the Department of Education has now made clear that schools have no power to seek to compel teachers to use transgendered pronouns for pupils. The precise extent of any attempt to compel Mr. Burke to use such pronouns might be disputed, but the fact that there was such an attempt is not.
Second, Mr. Burke has long contended that the disciplinary process against him was fatally flawed. Yesterday’s events would, on balance, tend to support the notion that he has a case.
These are the two fundamental questions in the Burke matter: Was he or was he not unfairly asked to compromise his conscience in relation to the use of pronouns? And were the disciplinary actions against him undertaken fairly and appropriately? If Mr. Burke were to prevail on both of those questions, one might think that the courses of actions open to the courts would be reasonably limited, and the outcome very obvious, if deeply embarrassing to the school.
Unfortunately, and for whatever reason, Mr. Burke has inserted other legal questions into this matter with unfortunate regularity: The courts have also been asked, unnecessarily in my view, to rule on whether Mr. Burke can keep attending school while suspended from work. They have been asked to rule on whether Mr. Burke can ignore the courts’ own orders in relation to that question. They have persistently been asked to deal with the question of whether Mr. Burke and his family can behave as they do in a courtroom.
It is difficult to see how the insertion of these additional legal questions into the central matters at issue in the case have benefitted Mr. Burke in any way, if the objective of his actions was to be vindicated in relation to the pronoun issue and the manner of his suspension and dismissal.
It should also be noted here that, as yesterday proves, the legal process has been absolutely willing to deliver, and capable of delivering, outcomes that are a net benefit to Mr. Burke. Indeed yesterday, the courts refused the application to declare his case over bias moot. This is not to say he will ultimately prevail on the matter of bias, but he has clearly established that he has a case and the courts have clearly recognised that his case has the merit required to be heard.
One cannot possibly predict the ultimate outcome of this sad tale, but yesterday was a good day for Mr. Burke. The first, in fact, that he has had in a while.