Michael Clifford: Deflections rather than answers in justice committee postmortem

There was what some might regard as a preliminary postmortem on Frances Fitzgerald’s ministerial career yesterday, writes Michael Clifford.

It took place in Committee Room 2 in the bowels of Leinster House, before the Oireachtas justice committee.

As an inquiry, it didn’t emerge with many new facts. Instead, a straw man was presented to the assembled parliamentarians for a pummelling. There was also the presentation of not one but two separate inquiries as choice deflections from answering real questions.

In the round, the hearing of over three hours did little to allay fears that the Department of Justice requires some major changes, both cultural and operational.

One thing that did emerge yesterday was that nobody is still perpetuating the misplaced notion that the former justice minister Minister for Justice had not had sight of effective briefings that informed her in broad terms what Maurice McCabe was being subjected to at the O’Higgins Commission in 2015. This involved an attack on McCabe’s character at a time when both the minister and commissioner were publicly praising him.

The opening statement of the acting secretary general of the department, Oonagh McPhillips, again emphasised the point that Fitzgerald the former minister had waved around as her tenure at Cabinet floundered. She could not interfere in O’Higgins irrespective of what she had been told was afoot there.

McPhillips told the committee it would have been “wholly wrong” to do so.

“It would be unsustainable for the minister of the day to suggest that the defences or arguments which they [the gardaí] could offer to the commission could change or be circumscribed.”

This, as was illustrated by committee members yesterday, is a straw man. Nobody suggested she should have interfered.

“The minister would have been doing nothing wrong if she had assembled those copied [on the email informing her of what was going on at O’Higgins] and said ‘I want to discuss this’,” Fianna Fáil’s Jim O’Callaghan put to McPhillips.

“Our view is that any minister should not involve themselves,” she replied.

The reality was that the minister showed a stunning lack of curiosity about what was going on behind closed doors.

Fitzgerald has had to answer for that in the political arena. But the failure to discover the emails at the centre of last week’s row — dating from May 15 and July 4, 2015 — to the Charleton tribunal is most certainly a matter for the department.

A number of committee members couldn’t get their heads around this. After all, the tribunal had been set up by the justice minister Minister for Justice.

And her own department couldn’t manage to provide the tribunal with all it required to do its job?

Mick Wallace explored the matter but the response he received was that “we could have dumped thousands upon thousands of documents down in Dublin Castle”.

It was pointed out by assistant secretary John O’Callaghan that the department had complied with orders of discovery from the tribunal. This neatly sidesteps the bigger issue. 

In February, Judge Peter Charleton appealed for anybody with any information that might be of relevance to come forward. The department had been dealing with McCabe for years. It had also had extensive contact with the O’Higgins commission.

A relatively small amount of work would have been required to check what exactly was on file in the Garda section of the department that might be of use to Charleton.

After all, once the Taoiseach ordered a trawl in the department, the response was back in just five days. In a properly run department, intent on assisting the judge by all possible means, the trawl could have been conducted last February or March and the results conveyed to Charleton post haste.

Labour’s Alan Kelly said he found the department’s response to the tribunal “alarming”. “We’re basically finding out from the Department of Justice that they didn’t provide the information,” he said.

Further inquiry into the extent of discovery of documents to the Charleton tribunal was headed off with stern assertions that a senior counsel is to be appointed to examine how everything was handled and woe betide anybody who drifts onto the counsel’s patch.

The other deflection de jour was the tribunal itself. Repeatedly the officials from the department said they could not answer any questions that might stray into the inquiry’s remit.

So it went at this attempt to penetrate the cast iron walls of the department.

None of the committee members appeared to be satisfied with the quality of answers they received.

As for the officials, they had all the hallmarks of people forced to endure an exercise for the sake of a quiet life, before getting the hell out of there with a sense of relief they’ve got past that one.

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