Mick Clifford: Helen McEntee has questions to answer over handling of garda whistleblower disclosure

Former justice minister Helen McEntee needs to explain exactly how she attempted to protect the whistleblower

So far, Helen McEntee has not given any explanation as to why she sent a protected disclosure back to An Garda Síochána. File photo: Brian Lawless/PA

Laws to protect whistleblowers have been implemented on foot of bad experience. There have been numerous cases of whistleblower reprisal, none more so than that of Maurice McCabe, who exposed abuses of the penalty points system within the gardaí.

As a result of his and others’ experience, special provisions have been put in law to ensure they are protected. In that respect, former minister for justice Helen McEntee may have serious questions to answer. 

The paper trail of how she handled a disclosure from a senior garda suggests she acted without legal authority and in contravention to the best interests of the garda whistleblower.

In September 2023, a solicitor acting for Detective Superintendent Brian O’Reilly wrote to the minister enclosing a protected disclosure. This covered a number of areas of malpractice within the gardaí, which O’Reilly believed should have been dealt with but were not addressed. 

He had attempted to have his disclosure dealt with internally in An Garda Síochána but didn’t feel he was getting anywhere.

“As the minister for justice you are obliged to take all necessary and appropriate steps to intervene, to ensure the immediate safety, health and welfare of our client and his family, as well as members of An Garda Síochána and the general public and to preserve public confidence in the national police force,” the solicitor wrote.

At this point, the minister acted correctly. She forwarded the disclosure to the Office of Protected Disclosures Commission (OPDC). 

This office was established in recent years to deal with disclosures that are not, or cannot, be dealt with internally in an organisation. One of its primary functions is to ensure the protection of whistleblowers, including their identity.

The OPDC considered the disclosure. Then the office acted according to Section 10D of the Protected Disclosure Act. This instructs the OPDC to “transmit the report to such prescribed person or other suitable person, as the case may be.” 

In this instance, the OPDC sent the report to the secretary general of the Department of Justice, Oonagh McPhillips. In effect, this was handing the matter to the department to investigate.

Once she received it, Ms McPhillips was charged with assessing whether there was substance to the protected disclosure, according to Section E of the act. 

This section instructs that if the appointed person concludes there is something to be investigated he or she must “take appropriate action…to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned.” 

It is also open to this person to write back to the OPDC and say why they are not the right person for this job. Equally, if this person considers that the allegations in a protected disclosure don’t have any substance, they can close the file.

A decision could have been taken at that point to find an independent investigator to examine the protected disclosure for the department. What happened instead is that the minister decided that the disclosure be sent to An Garda Síochána. 

There is no provision in law for this to occur. The referral sent to An Garda Síochána included attachments that clearly identified Detective Superintendent Brian O’Reilly.

On December 21, the protected disclosure was emailed from the department to human resources in An Garda Síochána. In the accompanying note, an official from the department provided the background, that the protected disclosure had included allegations against the garda commissioner. 

The recent political and media exposure around the garda whistleblowers gives rise to the obvious question as to whether anything has changed in the brave, new world that was supposed to emerge from the aftermath of the Maurice McCabe case. File photo: Barry Cronin

The bar for such an investigation, the official wrote, has not been met. “She (the minister) has therefore directed me to refer the matter to you for investigation.”

Legally, the minister has no authority to refer the matter to An Garda Síochána. Under the Protected Disclosure Act, the matter should have been investigated in this instance by the department, or somebody acting on behalf of the department.

A later letter from a department official to O’Reilly’s solicitor confirmed that the OPDC “had not referred your client’s protected disclosure to the minister”. 

Explanation needed

So why did the minister take the decision to send the protected disclosure on to An Garda Síochána when she had not officially received it and had no legal authority to do so?

How could she not have known that doing so would identify the discloser, Detective Superintendent O’Reilly, and undermine the whole basis for the law in this area?

So far, Helen McEntee has not given any explanation as to why she sent a protected disclosure back to An Garda Síochána. She has consistently stated that she was precluded from commenting on anything to do with protected disclosures that were received by her office when she was in justice.

However, Detective Superintendent O’Reilly’s identity is no longer an issue. Irrespective of that, it would be perfectly open to Ms McEntee to reveal under which law she was operating when she referred the protected disclosure to An Garda Síochána.

The recent political and media exposure around the garda whistleblowers gives rise to the obvious question as to whether anything has changed in the brave, new world that was supposed to emerge from the aftermath of the Maurice McCabe case. Most of that has to do with internal workings within An Garda Síochána. 

What is at issue here is the safety and protection of whistleblowers when they go outside the force in the belief that they will receive the protection that is not forthcoming in the organisation. Ms McEntee needs to explain exactly how she attempted to protect the whistleblower.