ALAN SHATTER has finally got justice. He can sleep easier now, although his dreams may be filled on reflections of “what could have been” if he hadn’t been done a wrong in the first place.
The Court of Appeal ruled yesterday that Shatter’s “constitutional rights were in jeopardy” as a result of criticism in a report which ultimately led to his resignation as a government minister. The appeal followed a rejection of Shatter’s case by the High Court in June 2015.
The appeals court made plain that Shatter’s resignation was a “political” matter that didn’t concern the bench. But it did rule that the former minister was done a disservice in the report which led to him losing office.
Shatter resigned on May 7, 2014, after being told by Taoiseach Enda Kenny that he had three hours to read a report compiled by senior counsel Sean Guerin before deciding what to do. In effect, Kenny was handing his minister the metaphorical pistol and bottle of whiskey, pointing to a room where he could do the decent thing and terminate his political career.
The Guerin report outlined how serious allegations of malpractice by Sergeant Maurice McCabe had been dealt with by the force and the Department of Justice. The issue arose after Micheál Martin brought to the floor of the Dáil the previous February a dossier of McCabe’s allegations, which, the Fianna Fáil leader said, had not been properly dealt with. At the time, McCabe had come to public attention for highlighting abuse by senior officers of the penalty points system for motorists.
Kenny gave Guerin eight weeks to conduct a scoping inquiry into the dossier. Bang on deadline, the Guerin report was published and Shatter was toast.
Guerin noted that Shatter had not conducted an independent investigation of McCabe’s complaints some two years previously.
The report went on to say: “Surprising that, having been informed that complaints had been investigated internally by An Garda Síochána, the minister appears to have been satisfied by a brief summary of the conclusions of the investigation, rather than seeking a copy of the investigation report for review.”
The only person interviewed by Guerin was McCabe. Shatter’s main criticism was that he was not given a chance to represent, or even defend, his own actions.
In his resignation letter to Kenny, Shatter said of the senior counsel: “At no time did he ask to interview me and I would have expected, if it was his intention to reach a conclusion or form an opinion with regard to my approach or the extent of my concern with regard to issues raised by Sergeant McCabe, that he would have done so.”
The High Court rejected that line of argument, but the Court of Appeal has now ruled that Shatter should have been heard by Guerin before publication of a report criticising him.
The president of the Court of Appeal, Judge Sean Ryan, ruled Shatter had established that “he was a person whose constitutional rights were in jeopardy” due to the “defective procedure” adopted by the report’s author, which had failed to “observe the rules of natural justice”. The judge makes a point of saying it has no criticism of how Guerin conducted himself on the basis that he was under severe time pressures.
The result provides Shatter with the complete vindication to which he has claimed he was entitled since he resigned from office. He used Dáil privilege to launch a blistering attack on Guerin the month after the publication, and he has spent two-and-a-half years fighting the Guerin report in both the High Court and Supreme Court.
He is entitled to feel some satisfaction at the ultimate outcome. Plausibly, he could trace his political demise to events surrounding his resignation, his consequent relegation in the party hierarchy, and his loss of status therein. His running mate in last February’s election, Josepha Madigan, was elected while he was not. Would such a turn up have occurred if he had still been a minister?
His resignation, however, should be seen in the context of the time. The criticism in the Guerin report provided Kenny with an excuse to jettison Shatter from the Cabinet.
It was open to the Taoiseach to say Shatter was entitled to retain office while a full investigation — the subsequent O’Higgins commission — establish all the facts. But Kenny had other fish to fry. Shatter had become a liability over his handling of Garda controversies for the previous six months in particular. Local and European elections were on the horizon. The criticism in Guerin gave Kenny the perfect excuse to rid himself of the turbulent Minister for Justice.
Shatter could, and most likely would, have weathered Guerin’s criticism if he had the full backing of his leader. He quite obviously didn’t and that fact, rather than anything in the senior counsel’s report, was the real catalyst for his political demise.
Meanwhile, despite Guerin and even O’Higgins, the Garda controversy that was at its height when Shatter resigned has not gone away.
On the publication of the O’Higgins report last May, it emerged there was an allegation that the Garda commissioner, Nóirín O’Sullivan, had instructed her counsel to question the motives of McCabe.
Last month, it was revealed by this newspaper that a new protected disclosure had been made to the Department of Justice concerning an alleged campaign in Garda management to discredit McCabe in 2014 when he was highlighting the various issues.
Retired judge Iarfhlaith O’Neill is examining the latter matter and is due to report next week.
Yesterday, however, Independent TD Clare Daly told the Dáil that neither of the two whistleblowers who made the disclosure have been interviewed or received any requests for information.