Already under mounting pressure because of the fall-out from the O’Higgins Commission, the Tánaiste said she would not be asking Ms O’Sullivan to reveal details of her dealings with her own legal team, telling the Dáil it would not be appropriate to break the usual rules of legal privilege enjoyed by a lawyer’s clients.
Sections of the Commissions of Investigation Act 2004 were also referred to as an impediment to the minister commenting on the matter, which has seen the Garda commissioner deny that she had accused whistleblower Sergeant Maurice McCabe of “malice”.
Dr Seán Ó Conaill, lecturer in constitutional law at the School of Law in University College Cork, said: “Personally I don’t think there is much of a leg to stand on for the minister.”
One section of the Commissions of Investigation Act 2004 outlines how a person, including a member of the commission, shall not disclose or publish any evidence given or the contents of any document produced by a witness while giving evidence in private, except in certain circumstances, such as a direction of a court.
As has already been pointed out by former Tánaiste Joan Burton, lawyers are not witnesses and their statements are not evidence.
Dr Ó Conaill said this reading was correct, and the issue of client-lawyer confidentiality seems to have been “voided” by the fact that the exchanges were recorded and documented in the transcripts, which were already in the public domain. “You could argue that they have waived that privilege doing that,” he said.
Dr Ó Conaill said the minister may not want to be seen to be interfering with An Garda Síochána, yet as minister “the buck stops with her”. He also said of the O’Higgins Commission: “This is not a court. This is a very limited fact-finding body, effectively.”
Ms Fitzgerald had told the Dáil that any insistence that legal privilege between clients and lawyers should be in the public domain was “going down a very dangerous route”.