Whistleblower row is still far from resolved

Just how much did the Department of Justice and the minister of the day know about attempts to silence a whistleblower, asks Special Correspondent Michael Clifford

Nóirín O'Sullivan, former Garda commissioner, with former justice minister Frances Fitzgerald. Picture: Gareth Chaney Collins

The failure of the Department of Justice to provide answers about the targeting of Maurice McCabe’s character is leading to many more questions.

Principal among these is who exactly knew that there would be an attempt at a statutory inquiry to portray McCabe’s character in the most negative light. And if, for instance, it was to emerge that the minister of the day, Frances Fitzgerald, was thus informed, then why did she stay schtum when the matter exploded into the public domain in May of last year.

Labour TD Alan Kelly asked four specific questions about the knowledge of the department of a legal strategy to attack McCabe at the O’Higgins commission in 2015.

They were:

  • To ask the Minister for Justice to outline fully the extent of consultation that the former Garda commissioner, Nóirín O’Sullivan, had with the Department of Justice prior to commissioner O’Sullivan giving instructions to her legal team representing her at the O’Higgins commission.
  • To ask the Minister for Justice to outline fully the extent of meetings and communications in any way that the former Garda commissioner, Nóirín O’Sullivan, had with the Department of Justice prior to commissioner O’Sullivan giving instructions to her legal team representing her at the O’Higgins commission. Please provide dates and times of meetings, communications type, attendance and agendas.
  • To ask the Minister for Justice if anyone in An Garda Síochána has made a complaint to his department regarding the manner in which the former commissioner, Nóirín O’Sullivan, gave instructions to her legal team representing her at the O’Higgins commission and if so how this is being dealt with by his department?
  • To ask the Minister for Justice what contact, meetings, and correspondence the secretary general of the department, Noel Waters, or any of his senior officials had with the former Garda commissioner, Nóirín O’Sullivan, or any of her senior staff or advisers prior to commissioner O’Sullivan giving instructions to her legal team representing her at the O’Higgins commission? Please provide dates and times of meetings, communications type, attendance, and agendas?

He has got partial replies. He has now complained to the Ceann Comhairle about this “affront to democracy” as he terms it, and has submitted more detailed questions.

These are:

  • To ask the Minister for Justice what was the purpose of the telephone call from commissioner O’Sullivan to the secretary general of the department on Friday, May 15, 2015, and if will he make a full public statement on the matter.
  • To ask the Minister for Justice to publish the logs/notes and diary entries in the department regarding the phone call between commissioner O’Sullivan and the secretary general of the Department on Friday, May 15, 2015, and if he will make a statement on the matter.
  • To ask the Minister for Justice when the departmental minister at the time was informed about the phone call and/or the details of the phone call between former commissioner O’Sullivan and the secretary general of the Department of Justice on Friday, May 15, 2015, and if he will make a public statement on the matter.
  • To ask the Minister for Justice when anyone in his department was made aware of the decisions taken at the meeting of senior Garda management in Garda Headquarters on Friday, May 15, 201, and if will he make a full public statement on the matter.

Last week, the reply he received did not answer the basic question as to whether there were meetings or contacts between members of An Garda Síochána and the department prior to the O’Higgins commission.

Transcripts from the commission, later published in the Irish Examiner, revealed that the legal strategy employed by Ms O’Sullivan was to claim that McCabe had a grudge against the force which prompted his complaints. The then commissioner may well have been acting on good faith in following this strategy.

It was based on an allegation that McCabe had expressed a grudge towards a senior officer at a meeting in 2008, and indicated that that was behind his complaints of malpractice.

The commission, which was conducted behind closed doors, was told there would be evidence to that effect. A document outlining the sequence of events leading up to the 2008 meeting, and McCabe’s alleged admission at it, was prepared by the Chief State Solicitor’s office and handed in to the commission.

Then McCabe, to everybody’s surprise, produced a recording of the meeting in question. No grudge was expressed on the recording.

The strategy of attacking McCabe’s character “right the way through”, as O’Sullivan’s lawyer had indicated, was dropped. There was no mention of the whole affair in the final report.

There was no investigation at the commission as to how the chief state solicitor could have prepared a document that was now shown to be based on a falsehood.

It has since emerged that the civilian head of HR in the gardaí, John Barrett, has told the Disclosures Tribunal that he was informed at the time by a colleague that “we are going after Maurice at the commission”.

The matter emerged publicly in the pages of the Irish Examiner when the O’Higgins report was published in May 2016. Thereafter, it was handed over to GSOC, which is ill-resourced to deal with such a matter, and most likely confined in how far it can go to investigate it.

At the time, the then justice minister, Frances Fitzgerald, refused to say when she first knew about what had occurred behind the closed doors of O’Higgins.

Then earlier this year the Disclosures Tribunal was set up to examine whether the generation of a false and grievous allegation of child rape against McCabe was an attempt to smear his character.

Maurice McCabe and his wife had requested a public inquiry on the basis, they said, of what they had been subjected to over the “grudge” allegation behind the closed doors of O’Higgins.

The Government also agreed that the Disclosures Tribunal would examine what happened at the O’Higgins commission. The matter is scheduled for hearing next January.

Now it is emerging that the Department of Justice may have been aware of the strategy that was deployed against McCabe.

Not just that, but Kelly’s latest questions concern alleged contacts between the commissioner’s office and the office of the secretary general of the department on May 15, 2015.

This was the day that the commissioner’s lawyer told O’Higgins they would be attacking McCabe’s character based on the alleged grudge.

That was also the day that the chief state solicitor was instructed by O’Higgins to prepare a document to show the basis for the proposed attack.

If any of these contacts are confirmed a number of serious questions arise:

  • When and to what extent was the Minister for Justice informed?
  • Did anybody in the department ask questions as to how a meeting which had occurred seven years earlier was now being dredged up?
  • Did anybody ask why, in all the other inquiries related to McCabe’s complaints of malpractice, had it never previously been introduced?

By 2015, issues around Maurice McCabe’s complaints had led to the resignation of a Garda commissioner and a minister for justice. (Alan Shatter would in 2016 be deemed to have been treated unfairly in the Guerin report which led to his resignation).

A secretary general in the department had also moved to another job. Surely anybody with the faintest political antennae would have inquired how solid was the basis for attacking a man who had been shown to be largely vindicated, and also resourceful in how he had survived.

One other question arises as to the reaction from Ms Fitzgerald when the issue entered the media and political domain in May 2015: What did she know?

These questions are not academic. They go to the heart of to what extent the State may have been involved — either unwittingly or otherwise — in attempting to silence a whistleblower.

It is also a matter the Oireachtas, beyond Mr Kelly, should be examining in far greater detail. If the department knew, then the terms of reference of
the Disclosures Tribunal must be adjusted to include the department in its inquiry.

Ironically, the partial answer supplied to Mr Kelly from the justice minister last week included the plea: “The deputy will be aware some aspects of the O’Higgins commission are part of the remit of the Disclosures Tribunal and I am limited in what I can say.”

The department is not involved in any form in the Disclosures Tribunal under its current terms of reference.

That may well be about to change if the answers to Mr Kelly’s questions suggest in any way that the department and the minister of the day, Frances Fitzgerald, was in the loop in the attempt to go after Mr McCabe.

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