Daniel McConnell

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Special report: Department of Justice ‘not fit for purpose’ but reforms remain a work in progress

Following a series of high-profile scandals, the Department of Justice has become the new ‘Angola’ writes Political Editor Daniel McConnell

Special report: Department of Justice ‘not fit for purpose’ but reforms remain a work in progress

Following a series of high-profile scandals, the Department of Justice has become the new ‘Angola’ writes Political Editor Daniel McConnell

The new ‘Angola’.

Not fit for purpose. Toxic.

Just a few of the pejorative adjectives used in recent times to describe the once supreme Department of Justice.

Just five years ago, it stood proudly as the bastion of law and order in this country.

But a wave of scandals since then, a succession of damaging resignations and departure of senior ministers and officials, have left it shell-shocked, battle-weary and rudderless.

Its failures before Christmas in how it handled emails relating to Garda whistleblower Maurice McCabe and failure to properly answer parliamentary questions from Labour TD Alan Kelly almost led the country to a snap general election and did force then-Tánaiste, Frances Fitzgerald, from office.

In the wake of her departure, having lost his Tánaiste, Taoiseach Leo Varadkar promised radical reform of the department, including full implementation of the 2014 Toland report, the progress of which, critics would say has been painfully slow.

Where it all went wrong

For almost nine decades, the department operated free of independent oversight and largely behind a veil of secrecy.

Yet when McCabe and others began to blow the whistle on issues within the force in 2013 on issues like the wiping of penalty points the department found itself floundering at the heart of a major political scandal.

In 2014, the now Taoiseach but then transport minister Leo Varadkar made the following statement: “The Department of Justice is not fit for purpose. We need cultural change. You know, too much in Ireland — and it’s not just a garda issue — we still have the culture of doing favours, the nod and the wink, the use of discretion and those type of things.

“We need now, over the next 10 or 20 years, a move to a rules-based society so that this kind of stuff doesn’t happen anymore.”

Varadkar blindsided many in his own Government by referring to the actions of McCabe and his fellow whistleblower John Wilson as “distinguished” as opposed to “disgusting” as they had been called by then-commissioner, Martin Callinan.

Both Callinan and the then-justice minister, Alan Shatter, were gone within weeks and Frances Fitzgerald was appointed to restore calm.

Along with Nóirín O’Sullivan, she sought to bring an end to the maelstrom of controversy; but a difficult relationship between them saw them dragged into the firing line.

No more so than when this newspaper revealed in 2016 that lawyers acting for O’Sullivan sought to attack the credibility of McCabe at the O’Higgins Commission, which had been set up to examine his allegations.

The crux of the matter politically was whether O’Sullivan’s lawyers went on the attack with the OK from Fitzgerald and the Department of Justice. The inference is that while they were saying positive, supportive things about whistleblowers in public, behind the scenes, it was a different matter.

Fitzgerald was forced to resign when it emerged that she and her department had been told by O’Sullivan of their line of attack on McCabe at the O’Higgins Commission.

Last week, a report commissioned by the Government into the department’s mishandling of emails found what went on was “ad hoc” and “unsatisfactory” but not deliberate.

Conducted by senior counsel Michael Collins , the report found that there is no particular system in place in the department to ensure that emails are filed appropriately.

“The principal issue of general concern identified in the Review relates to the lack of a clear system for the filing and storage of emails.

“There appears to be a general acceptance — both among current and former officials at all grades and at ministerial level — that this is a problem which needs to be addressed,” Mr Collins found.

Department officials indicated that emails generally find their way to the appropriate division and it is simply assumed within the higher ranks of the department that personnel in the relevant divisions will file emails when and where appropriate.

“This appears unsatisfactory,” Mr Collins concluded.

Mr Collins also found that an initial search for documents did not include the email accounts of officials in the Policing Division or senior officials in the department or the secretary general’s office.

No meaningful explanation has been provided for this omission, he said, other than that it did not apparently occur to officials within the Policing Division to search such email accounts, possibly because they did not consider that the focus of the tribunal’s investigations was on the department.

Going forward

Following Frances Fitzgerald’s resignation, the Taoiseach announced that a group would be established to assess progress in implementing the recommendations of the Toland Report.

Included in that was a commitment to split the department up into different divisions, but that decision has been criticised by a number of former justice ministers who say it is not the right thing to do.

“I have heard all this stuff about dividing the department into Home Affairs and all this stuff. To be honest, I wouldn’t agree with that,” former Fianna Fáil justice minister, Dermot Ahern, has said.

His predecessor, Gerard Collins, agrees.

The longest-serving justice minister, Gerard Collins, added his voice in opposition to dividing up the functions of the department as recommended by the Toland report.

“Splitting the thing up would be a massive mistake. It is a recommendation by someone who is not at all familiar with how things work. Dividing it would be a mistake, in my view.”

The department itself doesn’t seem so sure either, saying the recommendation to divide it up came with the proviso that any definitive division would require ‘further detailed analysis’.

It also said any decision to formally split the department is a “political call”.

Former ministers have virtually all agreed on the need for the department’s workload to be reduced.

Nora Owen said: “At this stage, it really is necessary to take a good look at what is under the department’s control. There is no doubt in my mind that some of the units and agencies, something like 40 agencies, need to be moved away.”

“Of course the staff are great but mistakes are made, ministers make mistakes. I think it is evidence of the department size being too big, the extent of the different sections in the department,” she added.

Dermot Ahern agrees: “Less workload. It is a department that has far too much of a workload,” he said.

“I think you have to hive off some of the agencies elsewhere, there is a good deal of the workload that could go away from the department. For instance, immigration is one area that could be hived off and handled differently. Yes there is a tie-in with Crime but generally a separate Immigration Service would be advisable,” he said.

“Also, they should be less inclined to take on the work that should really be done by other departments,” he added.

Gerard Collins told the Irish Examiner that staffing the department properly has been an issue going back to the 1970s and 1980s when he was in office.

“In my time we had four assistant secretaries — in other departments you had four or five times that. The department was never properly structured from a manpower point of view above the principal officer level,” he said.

The department itself seems to recognise it is stretched.

“The management team recognises that it is a very large organisation with an exceptionally broad range of issues, many of which require a lot of time and sensitive handling from senior management and ministers,” it told the Irish Examiner.

To monitor progress, an Effectiveness and Renewal Group, chaired by Padraig Ó Ríordáin, was established by the Government in January. But it will take until March 2019 — a full five years after the Toland report — before we hear a progress report from the minister.

“There is a recognition that real culture change takes time to achieve in any organisation but that it must be lived consistently and visibly by leaders. While still a work in progress, the management board takes it seriously and genuinely welcomes assistance, external validation and support in driving the necessary change,” the department said.

The snail’s pace of progress has also been criticised by the current Opposition in the Dáil.

Fianna Fail’s justice spokesman, Jim O’Callaghan, said even though the Government has commissioned numerous reports into reforming the Department of Justice, we have yet to see any actual reform.

“Last Christmas, it was announced that the department would be split into two portfolios. This has yet to occur. The Government must ensure that this reform takes place immediately.

“The failure of Government to act on the numerous reports is undermining the reform agenda and suggests a lack of urgency on the part of Government. This is preventing the department from becoming a more effective and better-managed unit,” O’Callaghan added.

A work in progress. That is putting it mildly to say the least.

Owen: Relationships must be good 

Nora Owen: ‘Now far too much oversight of justice matters which is utterly confusing to the people’.
Nora Owen: ‘Now far too much oversight of justice matters which is utterly confusing to the people’.

Nora Owen was appointed minster for justice in December 1994 by Taoiseach John Bruton and within a month had to face two major crises.

One was the Lansdowne Road riot by English soccer fans, and the second was the €3 million Brinks Allied robbery in North Dublin.

“I was in office less than a month and John O'Donoghue in Fianna Fáil was only finding his feet and, to him, I had caused the robbery, I had caused the riot at Lansdowne Road,” she said.

Her time in office also coincided with the brutal murders of journalist, Veronica Guerin, and Detective Jerry McCabe.

Their deaths were the catalysts for the establishment of national drugs unit within An Garda Siochana but more significantly the Criminal Assets Bureau.

She had a rocky relationship in the beginning with the then-Garda Commissioner, Patrick Culligan.

“Paddy Culligan was in charge and was a very different type of person to Pat Byrne who took over in 1996,” she said.

“I had a good relationship with him but it got slightly fraught when the Brinks Allied robbery and the Lansdowne Road riots happened in January 1995,” she said.

“When Brinks happened, I was briefed immediately but I wasn't briefed on a report which had indicated in December that there might be a robbery of cash in transit that month. That was a mistake on his behalf and when Mary Harney got a leak, it made it very difficult for me as minister,” Ms Owen states.

But matters improved after that and she said the relationship with Mr Culligan and later Pat Byrne who took over in 1996 was a crucial one.

“The relationship between the minister and the Commissioner has to be good,” she said.

Did she see herself as the political head of the force, I ask her.

“No. You had to be careful not to be political, as in constantly ringing up and saying 'why was this done or not done or whatever'. The Commissioner had and has to be independent in his or her job. But it has become far more intimate in terms of the expectation now. The Minister is nearly supposed to be sitting in Templemore or in the Phoenix Park and to be over everything,” she said.

Is the department fit for purpose?

“At this stage, it really is necessary to take a good luck at what is under the department's control.

There is no doubt in my mind that some of the units and agencies, something like 40 agencies, need to be moved away,” she said.

“The department - of course the staff are great but mistakes are made, ministers make mistakes,” she added.

“I think it is evidence of the department size being too big, the extent of the different sections in the department. I think some emails would have been in an Assistant Secretary's side, others would have been in the Garda side, others in the data protection side. I think when they were asked for information from the Tribunal, they went to the sections where the biggest load were and didn't go to everywhere,” she said.

Ms Owen says the Frances Fitzgerald email saga was “unfortunate” but avoidable.

“It was unfortunate that Frances had it [the email] and four or five people got them but I am surprised that maybe she wasn't made aware. But it must have been hectic, you don't know what was going on in the department, she just wasn't remembering and probably should have before she spoke. She probably should have spoken to her advisors and ask 'Jesus, did we ever see that email',” Ms Owen added.

“Therefore for Frances, the whole thing was fraught and when Toland reported and looked at breaking up the department I would say it now some of the agencies have got too big to be under the one roof. I mean, look at the Tusla report into Maurice McCabe,” she said.

In terms of not answering questions, Ms Owen feels there may have been a reluctance to answer the questions from Alan Kelly for fear it would “cause a problem". “But with the McCabe stuff and the O'Higgins Commission, there was probably a worry that 'if we say this it will cause a problem'. Rightly or wrongly, I tried to give as much as I can but when there is a Garda investigation you can't share everything,” she said.

“That is easier said than done with someone as robust as Alan Kelly and not easy in the new politics with eight parties,” she added.

Owen is also adamant that there is now far too much oversight of justice matters which is utterly confusing to the people.

“At this stage I have to write down the various oversight bodies. I mean it is almost impossible to get your head around. There must be a lot of tension between them about 'is this my turf or not?'. And for the public, they must be asking 'who the hell do I send my complaint to?'. These protective disclosures, I am not sure who they can go to,” she said.

“If I was giving advice to Charlie Flanagan: Look at the different bodies and make sure they are not stepping on each other's toes and to avoid any crossover. And looking at the Dept of Justice, they also need to look at the various bodies, I think there is 10 or 11 bodies,” she said.

Collins: Split would be a mistake 

Gerard Collins: ‘I was a one-man Justice Committee and that was a very effective and positive interaction and I was accountable to the Dáil’.
Gerard Collins: ‘I was a one-man Justice Committee and that was a very effective and positive interaction and I was accountable to the Dáil’.

Gerard Collins was a Fianna Fáil Justice Minster between 1977 and 1981 under Taoisigh Jack Lynch and Charles Haughey and again between 1987 and 1989.

He is the longest-serving minister in the Department of Justice.

Faced with the constant threat of the paramilitary violence throughout his time as Minister, Mr Collins says the greatest challenge he faced was the campaign by the IRA to threaten the viability of the State.

“The single greatest threat to the State during my three times as Minister for Justice was the IRA and their repeated attempts to undermine the State,” he said.

Mr Collins, an ardent defender of An Garda Siochana, said as minister he had to have an intense engagement with the Garda Commissioner of the day in order to combat that threat posed by paramilitaries.

“During my time, I dealt with several Garda Commissioners when I was minister, I was the longest-serving minister for justice through some very difficult times. But we had a constant engagement at a very high level,” he notes.

He said staffing at the Department was always an issue - even as far back as his day - which impinged on the ability of it to function properly.

“In my time we had four Assistant Secretaries - in other departments you had four or five times that. The department was never properly structured from a manpower point of view above the principal officer level,” he says.

He added his voice to opposition to dividing up the functions of the department as recommended by the Toland report.

“Splitting the thing up would be a massive mistake. It is a recommendation by someone who is not at all familiar with how things work. Dividing it would be a mistake, in my view,” he says.

Agreeing with Dermot Ahern, Mr Collins says that hiving off some functions from the department could be a solution, but adds that if the department was properly staffed, maybe that would not be necessary.

“If it was needed, I would hive off Immigration and other parts. Prisons are now effectively hived off. In my time I had them because I had up to 50 people on hunger strike and the prisons were exceptionally volatile. But in saying that there is nothing to stop a properly structured unit existing within the department to look after Immigration. If it were properly manned,” he says.

Asked did he see himself as the political head of the force during his time as minister, Mr Collins was definitive in his view: “No, I did not. The day-to-day running of the force was a matter for An Garda Siochana, and they had a largely free hand to deal with the running of the force”.

In the context of the row over oversight and accountability, Mr Collins goes on to say that he was responsible for the budget of the force, saying he and his department were the “bookkeepers” for the force.

“Now, back in my day, we in the department were responsible for the justice vote of monies which included the funding for An Garda Siochána. So in a sense, we were the bookkeepers for the force, I suppose I was a one-man Justice Committee,” he says.

Asked if there too much oversight now, he says that his Secretary General was accountable to the Public Accounts Committee at least once a year and that system worked effectively: “I was a one-man Justice Committee and that was a very effective and positive interaction and I was accountable to the Dail."

Collins accepts that the force has been badly damaged in recent years by the wave of controversies.

Looking forward, he says he has a “great regard” for Josephine Feehily, the chairwoman of the Independent Policing Authority and that body has an important job to play in reforming the force.

Ahern: ‘Beef up oversight’ 

Dermot Ahern: Descriptions of the department being ‘not fit for purpose’ surprise the former minister.
Dermot Ahern: Descriptions of the department being ‘not fit for purpose’ surprise the former minister.

Dermot Ahern was Minister for Justice under Brian Cowen from 2008 to 2011, having been denied the “job I always wanted” by Bertie Ahern.

As the most recent incumbent of the office speaking to the Irish Examiner for this piece, he said the descriptions of the Department of Justice not being fit for purpose are astonishing.

“The descriptions of it being 'not fit for purpose' surprise me as in my time, it was more than fit for purpose. I probably would say, because of the way it dealt with the matters it did. It was completely the opposite of 'not fit for purpose'. I am not sycophantic about the place, but the people at the top were 'shit hot'. So what went wrong I do not know,” he said.

Mr Ahern said the attitude of the department at that stage was very much “can do” and they often took on work that should have been done by others.

Much of that dynamism has clearly been lost in more recent times.

I ask him what he thought went wrong in the department in relation to the mishandling of emails relating to Maurice McCabe, which forced ex-Tánaiste Frances Fitzgerald from her job last November.

“The issue of what went wrong with emails. I can accept what happened about the emails not being sent because there are so many. I don't know how they made such a mess of it, the emails,” he said.

He has a similar view of the failure to pass crucial letters from the Garda Commissioner to the Minister for almost two weeks - a reference to the affair which ultimately cost Alan Shatter his job in May 2014.

“In my time, I was very lucky with the Commissioners I dealt with. Letters not being sent for two weeks, that would never have happened,” he said.

“That is because the Commissioner of the day would often ring me or text me and let me know that a file or a note is on its way down to me. He wanted to make sure I saw it,” Mr Ahern said.

“His political antennae would have told him that I needed to see this quickly,” he explains.

Did he see himself as the political head of the force, I ask him.

“No, no no. I was always adamant in any department that I could not know what was going on any given day - in the ESB when I was in communications or An Post and it was the same in Justice,” he said.

So what happened with Fitzgerald? What went wrong?

“What probably happened, she was a bit of daggers with Nóirín O'Sullivan but she wasn't swearing confidence and allegiance to the Commissioner. There may have been some difficulty in that relationship I think,” he said.

But I would also question the advisors to the minister. My advisors were not Fianna Fáilers but were exceptionally clued in. Frances Fitzgerald appeared to hire FG people and they should have smelled this thing immediately,” he adds.

So what needs to change in the Department?

“Less workload. It is a department that has far too much of a workload. I have heard all this stuff about dividing the department into Home Affairs and all this stuff. To be honest, I wouldn't agree with that,” he said.

“I think you have to hive off some of the agencies elsewhere, there is a good deal of the workload that could go away from the department. For instance, Immigration is one area that could be hived off and handled differently. Yes there is a tie-in with Crime but generally a separate immigration service would be advisable,” he said.

“Also, they should be less inclined to take on the work that should really be done by other departments,” he adds.

In terms of oversight he said oversight of the Department is in Leinster House and the minister is responsible to the House, he says.

“As minister, I would take the blame for something relating to policy but the day-to-day responsibility of running the organisation was up to the Commissioner and his team,” he adds.

Going forward, Ahern said it is very difficult to restore confidence: “I think you would have to beef up the oversight of the force. Perhaps reform the structures within the Gardai in regard to promotion and discipline.” He also says the idea of bringing in an outside person to lead the force has merit but would need to work alongside an insider to drive reform.

“A lot of it boiled down to the people at the top. Bringing in the new person it would make sense to bring someone in from the outside to work in conjunction with someone from inside - a double-headed head of the Gardai. I would have some concern with an outsider having total control of the force,” he says.

“Maybe that outside person could drive the management reform agenda, with experience of change management, but whoever takes over has to be able to bring those things together,” he adds.

McDowell: Minister’s control vital 

Michael McDowell: ‘The Policing Authority quango simply muddies the waters of democratic control and prevents any direct exaction of accountability. It is a car crash in slow motion’.
Michael McDowell: ‘The Policing Authority quango simply muddies the waters of democratic control and prevents any direct exaction of accountability. It is a car crash in slow motion’.

Michael McDowell was Justice Minister between 2002 and 2007 in the Fianna Fáil/Progressive Democrat Government.

Now a senator and eminent Senior Counsel, Mr McDowell has not been shy in venting his feelings about what went wrong in the administration of justice in recent times.

He is a believer that the key relationship is between the Minister of the day and the Garda Commissioner and the newly created Policing Authority is nothing more than “ineffectual political window dressing”.

Mr McDowell has said it is the minister’s proper function to determine strategy, and to issue formal directions to the Garda Commissioner to implement it – if necessary making it clear that non-implementation will result in dismissal.

“The Policing Authority quango simply muddies the waters of democratic control and prevents any direct exaction of accountability. It is a car crash in slow motion,” he said.

In truth, he says, the Policing Authority is not an authority at all but rather established by Enda Kenny’s government as a knee-jerk reaction to the crisis in public confidence arising from the departure of a Garda commissioner who received a late-night visit from Mr Kenny’s emissaries in early 2014.

The establishment of a Policing Authority was bitterly opposed at cabinet by the then minister for justice, Alan Shatter, but he was overruled at the insistence of the Labour Party - and within weeks he was gone himself.

Mr McDowell has said that policing is one of the most central functions of the executive arm of any state, including Ireland. No common law country has made its national police force (as distinct from regional constabularies) subject to a policing authority independent of the elected government.

The Irish constitution places the exercise of the executive power of the Irish State in the hands of the government, which is made accountable to the Dáil, he said.

The Garda Síochána is at once a national police force, a national security service and a national immigration service. It must be under the control of the executive in any functioning democracy. It cannot constitutionally be handed over to a non-governmental body that is independent of the government and the Dáil, he asserts.

Of the Authority, Mr McDowell has said even its own statute admits that its primary function is “oversight” of the Garda performance of its functions.

'Oversight' is not authority; it is nothing like authority. The Act leaves the real function of giving formal directions to the Garda Commissioner with the minister and government, which must always be the case in a democratic society, he said.

The former Tánaiste says that in his view there is nothing wrong with the idea of an executive management board for the Garda Síochána: "Such a board with a civilian majority was recommended in 2006 by the report of an advisory group chaired by Senator Maurice Hayes, a member of the Patten Commission in Northern Ireland. I made statutory provision for its establishment in 2007, but four governments came and went without appointing its members."

What is very wrong, he says, is the pretence that national policing and security can be taken away from the control of the democratically-elected parliament and government. That is wrong in principle and is also wrong in practice.

Real constitutional authority and accountability in this State lies, and should lie, with the government, the minister and a serious all-party Oireachtas policing committee, Mr McDowell expressed in a column in the Sunday Business Post.

"The brutal truth is that Garda management has been allowed to deliberately neglect and run down the Garda Reserve. What has been obvious since 2008, Mr McDowell says, is that Garda management was actively opposed to the 'civilianisation' process as recommended by the Maurice Hayes report and as initiated by me."

The Policing Authority is a tragic, useless and counter-productive mistake that we can well do without, he concludes.

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