Challenge to unaccountable power should not put off whistleblowers

SOME years ago I found myself in RTÉ’s hospitality suite just after the recording of Questions and Answers. The Government minister who had appeared on the show arrived in, sat down, lit a cigarette and joined in an animated conversation. Some moments later a Dublin West TD — a prominent figure in the opposition who was also a guest on the show — arrived in. He appeared to give a double-take when he got the whiff of smoke, looked uncomfortable and left early.

Later on, after the minister had also departed, John Bowman commented that the opposition TD hadn't waited long. One of the backroom team said she thought he might have been uncomfortable with the tobacco smoke. I can't remember if it was Bowman or his producer who said, "We really need to get no smoking signs in here."

The Government minister in question went on to greater things. He is now Minister for the (smoke-filled) Environment Martin Cullen. To be fair to him, I think he would have been horrified at the thought that his smoking had made anybody uncomfortable. But, like many smokers, he just didn't think. Or, if he did think, abstaining from smoking was simply not an option.

Thus it was no surprise that Cullen recently revolted against the proposal of his colleague, Minister for Health Micheál Martin, to ban smoking in pubs from January 1.

In criticising what he termed the "American political correctness" behind the proposal he departed from his own brief. Smoking in pubs is an environment-related issue. Comparisons between Irish pub culture and Sellafield would be over the top but passive smoking is undoubtedly a contributor to ill-health.

Smokers will be hit hard, that is true. But pubs are too central to Irish social life (even if we have reservations about that fact) to leave the Government any room for manoeuvre. It is unreasonable and glib to suggest that people who don't want to put up with passive smoking don't have to frequent pubs.

It was ironic of course that Cullen, a former refugee from the Progressive Democrats, should cling to his highlyindividualistic point of view, while erstwhile colleagues in the PDs go all communal and regulatory and, frankly, protective. That's a funny thing there is nothing individualistic about the current spate of Government initiatives. It is all about social responsibility now: the penalty points system; the ban on smoking; the reform of college courses.

Even the forthcoming Garda Síochána Act, under which gardaí who give unauthorised briefings to journalists may be imprisoned for up to five years, is highly regulatory in nature.

All these proposals seem quite out of character for a Government which tapped an individualistic vein among Irish voters in recent years. Perhaps it's just astute politics. The current spate of reforms are so imaginative and radical, and are prompting so much debate, that we have all nearly forgotten about claims that we were hoodwinked about the economy in the run-up to the last election.

The policies illustrate something else. Big change has always been very difficult for other parties to achieve, not least because of opposition from FF. But when Fianna Fáil decides to engineer change in Irish life, it has a better chance of succeeding. It can muster the numbers, but also has the ability to rope in support from opposition parties for measures that they would like to have introduced themselves.

The Government should not push things too far and turn Ireland into a nanny state. But nor should it give up on sweeping reform yet.

For example, the Garda Síochána Bill has infuriated some journalists because, if passed, it could lead to the arrest and questioning of gardaí and journalists about the unauthorised passing of information between them.

Some journalists see this as a threat to free speech, a potential curb on whistleblowers and the beginnings of a police state.

But just as easily the proposal can be seen as the beginning of a debate about the sometimes unaccountable power of the police and the media, and the need to prevent abuses by either institution.

There's a story which, like all urban myths, does the rounds in various forms. A big Dublin pub gets a phone call from the local garda station a few years ago. It's a garda social committee, ringing to announce that they are holding this year's Christmas party in the pub. That's fine, the hostelry says. "We'll lay on the food." "Lay on the drink as well," they are told.

The pub declines. Night after night the gardaí set up roadblocks to catch drinkers as they leave the pub. The pub changes its tune about laying on the drink for the garda party.

The fact that no evidence has ever been produced to prove the story hasn't stopped it from being told over and over. The problem is that if there is no accountability in the system, stories like that grow legs. Even if they are untrue.

But there is also the fear that, rather than exposing wrongdoing, journalists could become part of a chain of unaccountability. It's not unknown for gardaí to leak stories about suspects in their investigations.

And it is widely presumed that some journalists pay gardaí for these titbits. I have never been in a situation where I knew, definitively, that this was happening. But on one occasion I worked for a man who, according to a tabloid newspaper, had frustrated police investigations by failing to make himself available for interview concerning a crime by a third party. This allegation could only have come from the investigating garda.

The man was distraught. Contrary to what was alleged, he had tried on several occasions to make contact with the investigating garda, and in the end it was the garda who had failed to follow up with him.

Not only was the man not contacted in advance about the allegation but when he did issue a correction it was never printed. I was left wondering if this was because the garda source was ultimately more valuable to the newspaper.

Some of these abuses are hard to curb and the Government needs to be realistic. Powers which are too sweeping would be an unacceptable infringement of civil liberties. For example head 30 of the Garda Síochána Bill would impose a one-year prison term or fine of up to €3,000 for anyone deemed to have caused "disaffection" in the gardaí. This would be too draconian.

An article by Máiréad Carey in the current issue of Magill alleges the stitching-up of a garda who made damning allegations about the conduct of the force in relation to the Omagh bombing and who questioned the so-called murder confession in the Frank McBrearty case. If all this is true, it illustrates that those who might cause 'disaffection' sometimes act with just cause.

Any legislation needs to make clear that gardaí who are genuine whistleblowers who give information to the media about wrongdoing that their colleagues have committed and that their superiors have failed or refused to investigate should not be criminalised. But if there exists a cosy financial relationship between gardaí who tell tales and journalists who pay for them, it would have to be ended.