Oireachtas members have severely criticised the acting chief of the Department of Justice for insisting the department had “fully complied” with initial discovery orders issued by the Charleton Tribunal.
Deputies and senators attached to the all-party justice committee told acting secretary general Oonagh McPhillips that the department could not have fully complied with the orders, given they have subsequently had to hand over emails and other material found following parliamentary questions, media queries, and a Taoiseach-ordered trawl.
In a robust questioning session, numerous committee members said they found it incredible the emails could not have been discovered at the time of the discovery orders, given only a handful of senior civil servants were involved.
Ms McPhillips strongly rejected claims, or suggestions from some members including Labour TD Alan Kelly — whose parliamentary questions revealed the first email — and Fine Gael senator Martin Conway that the department willfully withheld documentation.
She came under sustained pressure for saying she was “disappointed” by comments from Taoiseach Leo Varadkar that the department was dysfunctional and appeared to disagree with the assessment.
Ms McPhillips said while she “regretted” that Mr Varadkar felt he should have been more fully briefed about the department’s knowledge of the legal strategy by former Garda commissioner Nóirín O’Sullivan to aggressively challenge the motivation of whistleblower Maurice McCabe, and that he had to twice correct the record, she refused to agree that the department’s actions were “unacceptable”.
Along with assistant general secretary for policing division John O’Callaghan, she repeatedly said the department had “fully complied” with requests from the tribunal for relevant documentation. She also pointed out the Taoiseach had asked an external barrister to conduct a review of the disclosure process.
The department acting head said there were three discovery orders — in February, May, and September of this year — and that all relevant documentation had been provided.
Ms McPhillips said the orders listed “specific things” the tribunal was seeking, and they did not include a general trawl of documentation.
Mr O’Callaghan, meanwhile, said the officials in the relevant section were “fully au fait” with the area and some voluntary disclosure was carried out in addition to the three specific orders.
The orders related to specific documents, all paper files, and all “relevant” documentation was supplied.
He and Ms McPhillips said that if the department was to supply any document relating to people at the tribunal, it would amount to tens of thousands of documents.
Mr O’Callaghan said they would be “effectively dumping thousands and thousands of documents” on the tribunal and that this would not be “helpful” to Justice Charleton’s efforts — a view shared by Ms McPhillips.
Independent TD Mick Wallace said that should be Justice Charleton’s “call”.
Sinn Féin TD Donnchadh Ó Laoghaire asked Ms McPhillips to detail the three orders, but she said she had legal advice to just give “broad brushstrokes”.
Committee chairman Caoimhghín Ó Caoláin asked her to check and see if she could do so.
Independent TD Clare Daly pointed out there were only six senior civil servants relevant to that area and said it was “shocking” that their emails could not have been searched at the time of the initial discovery.
She said part of the tribunal’s terms of reference were “black and white” in stipulating the emails were directly relevant to its work.
Fine Gael TD Colm Brophy said he found it “incredible” that Ms McPhillips and Mr O’Callaghan were insisting the department fully complied with the orders.
“By your own actions you didn’t comply fully,” he said, adding that he could not understand why everything, concerning the small number of civil servants, wasn’t searched at the time.
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