Government was not sad to see the back of Simon O’Brien, who has quit as chair of GSOC, but he did a good job and serious thought is needed on a successor, writes Michael Clifford.
The tone of the farewell to Simon O’Brien said it all. Following the announcement on Wednesday that he was leaving his position as chair of the Garda Ombudsman Commission (GSOC), the Department of Justice issued the mandatory cupla focal. “The minister thanks Mr O’Brien for the important contribution he made in his role as chairperson of GSOC as well as the valuable contribution to his previous role in the Garda Inspectorate, and wishes him all the best in his endeavours in his new career.”
Less than effusive and even a few adjectives short of complimentary. O’Brien’s contribution in GSOC was “important”, but not “valuable”. There is no mention of the challenges he faced during his three year-tenure at the helm of a body still struggling to find its feet. Nothing about how he was in situ when GSOC had to battle to assert its independence in a culture still resisting oversight. From the Government’s point of view, it’s easy to see why they are not sorry to see the back of him. O’Brien’s tenure was marked by a major controversy in GSOC, one which contributed to the loss of serious political capital by the Government. It fed into wider controversies around An Garda Siochana, which ultimately led Enda Kenny to effectively sack his justice minister. When things get that bad in government it matters not a whit how well a public servant performed his duty. All he will be remembered for in the upper echelons of Fine Gael is that he was a figure in the vortex of garda/justice issues that dogged the Government for the first half of last year.
The controversies surfaced with the publication of a story in early February that GSOC had conducted an investigation the previous September into suspicions that its Dublin office was being bugged. The obvious suspects, if bugging had occurred, were members of the gardai. When the story broke, the reaction to the story illustrated the challenges faced by O’Brien and his two commissioner colleagues. Instead of expressing worry at any possible bugging, the minister for Justice Alan Shatter carpeted O’Brien for not having informed him of the investigation.
This position was endorsed by Enda Kenny, who erroneously quoted the law. The then garda commissioner came out fighting, claiming nobody in his force had been involved in any bugging. How exactly he knew that none of the 13,000 members of the force could have been involved was something of a mystery. What emerged from the reaction was that instead of regarding suspicions about bugging as being a possible attack on an independent oversight body, GSOC was itself put in the dock. Elements of the government, the gardai — including staff associations— and the media all heaped pressure on O’Brien. “Is his position tenable” became a refrain on the airwaves.
Major focus was also put on the presence of a “leak” within GSOC. In reality, the only real criticism that could have been levelled at O’Brien during that period was that he had succumbed to a carpeting from the minister. As the head of an oversight body, O’Brien should arguably have reacted by handing in his resignation, for the sake of GSOC’s independence. To do so, however, in light of the onslaught against him from the force and elements of the media, might have given the impression he was leaving under a cloud. He made the decision to stick it out. He was thus to emerge as the last man standing as Shatter, Callinan and the secretary general of the Department of Justice Brian Purcell all exited office.
An investigation by retired judge John Cooke concluded that there was no evidence to suggest actual bugging, but, despite attempts to spin the story, this conclusion did not undermine how O’Brien and his colleagues had, for the most part, acted. Yet, some continued to target O’Brien as the villain of the piece. Speaking from the backbenches last September, Shatter couldn’t hide his bitterness as to how things had turned out. “From the start of this affair (the alleged bugging), GSOC have sought to cover up and keep secret a disturbing level of incompetence and failure to comply with their statutory obligations,” he said. As with other comments from the former minister, these were delivered under Dail privilege, where reputations can be kicked around free gratis. (Shatter’s a great cook though, having been awarded four stars in his appearance in TV3’s The Restaurant this week).
In reality, O’Brien was in charge of GSOC at a time of fierce resistance to proper oversight from both garda management and rank and file members. The Department of Justice, and its minister, showed little interest in backing up GSOC’s efforts at any juncture, and this was the context that informed the flow of events surrounding the whole bugging controversy.
Now, with O’Brien’s decision to return to a position in the UK, the Government has an opportunity to demonstrate that its fidelity to reform is more than just platitudes. In appointing a successor, consideration must be given to the status of the office. The first chair of GSOC was a high court judge, Kevin Haugh, who died while still serving. He was succeeded by a former secretary general of a government department, Dermot Gallagher. Then came O’Brien, a competent and senior cop with a good record. It would be difficult to envisage the late judge Haugh being dished out the kind of treatment that O’Brien received from senior ministers and the gardai. It would be nearly impossible to envisage a high court judge subjecting him or herself to a carpeting from the minister for justice.
Why not appoint a legal figure of such standing to succeed O’Brien? GSOC was set up in the aftermath of the Morris Tribunal, which exposed major flaws in oversight and management in the force. The office was the main plank of a set of reforms designed to drag accountability within the force into the 21st century. That initial burst of enthusiasm evaporated over time, when it became plain that in order to do its job properly, GSOC would impact greatly on prevailing garda culture.
Now is the chance to show that the oversight body can play an independent and constructive role in reform. The appointment of a figure with serious clout, allied to further empowering the body would show that real change is this time informed by serious political will.
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