Joan Burton: Claims a legitimate public concern

Remarks made about by the legal team of the Garda commissioner about Garda whistleblower  during the O’Higgins inquiry are a “legitimate public concern”, it has been claimed.

The call was made by former tánaiste Joan Burton yesterday, who has joined demands for clarity around the lawyer’s claims that Sgt McCabe acted in “malice”.

Pressure is also mounting on Justice Minister Frances Fitzgerald to reveal what she knows about the “tactics” used during the inquiry, as her officials were also present during the inquiry.

Labour received legal advice yesterday and said that, despite claims by Ms O’Sullivan, there is no legal barrier preventing her from commenting on what her lawyers said in the probe.

Ms Burton said it was not true, as claimed by the commissioner’s office and ministers, that the law prevents them from commenting on the remarks, which were published in the Irish Examiner.

A section of the Commissions of Investigation Act prohibits people from discussing any evidence given by a witness to an inquiry in private, said Ms Burton, but not from addressing remarks made by lawyers.

She said: “The governing law is the Commissions of Investigation Act 2004. It is true that section 11 (3) of the Act prohibits a person from disclosing or publishing any evidence given by a witness in private to a commission of investigation.

“And their statements to a commission are not evidence. So this prohibition does not apply.”

Ms Burton said the lawyer’s statements appeared to “directly contradict” the official public stance of Ms O’Sullivan towards Sgt McCabe in mid-2014.

“The Dáil and the public are entitled to know how she can reconcile this apparent contradiction.”

Ms Burton said: “The official stance of the Garda legal team towards Sgt McCabe, on foot of the instructions given to them by Garda management, has now become a matter of serious and legitimate public concern. Commissioner O’Sullivan owes it to the public to clarify this issue.

A “reporting relationship” also would have existed between Ms Fitzgerald and Ms O’Sullivan when their officials worked with the inquiry, said Ms Burton, and there was an onus on the minister to now outline what she knew about any “tactics” used by Garda management during the probe.

There was a “need to know whether or to what extent these tactics were known to or approved by the Department [of Justice] and the minister”, said Ms Burton.

Moreover, if Ms O’Sullivan or Ms Fitzgerald did not answer questions about the remarks, Ms Burton said the matter must be pursued by the new Garda policing authority.

It has “both a right and a duty to intervene”, she said.

Ms Fitzgerald’s spokesman last night reiterated that she would not comment on what might or might not have been said at private inquiry hearings.

A statement added: “Neither the department nor minister had any involvement in relation to Garda evidence or legal strategies at the Commission of Investigation.”

The department also disagreed that authorities could “override” rules for inquiries prohibiting the disclosure of “evidence”.

Meanwhile, Fianna Fáil leader Micheal Martin is expected to raise the matter in the Dáil today.