The Fennelly Commission was set up in the midst of a string of controversies to dog Enda Kenny, the justice minister, and the gardaí and so we have to look at the political context of everything that’s flowed from it, writes Michael Clifford
THE Fennelly Commission of Inquiry was set up in record time in the white heat of a political controversy on March 24 last year.
Its primary remit was to investigate the systemic recording of telephone calls at regional Garda stations, a practice that had come to light as a result of a court case over the previous few months.
However, the recording issue was just the latest of a string of controversies that had dogged Enda Kenny, his minister for justice and the gardaí on a near weekly basis in the first quarter of 2014. As such, Fennelly and everything that has flowed from it, is all about political context.
The controversies had eroded political capital which Mr Kenny’s people believed would accrue following the exit of the troika the previous Christmas. It was against this background that Fennelly was set up with no preceding scoping inquiry or even public controversy.
Then, contrary to the usual practice, Fennelly was set up with no preceding scoping inquiry, or even public controversy. All of that was enough to raise questions about the real purpose of Fennelly, but when the resignation of garda commissioner Martin Callinan was thrown into the inquiry nearly as an afterthought, the questions began to multiply.
By March of last year, the Government had it up to its ears with Garda controversies.
Problems with abuse of the penalty points system had first surface nearly 18 months previously. It wasn’t dealt with properly, and the persistence of the garda whistleblower Sgt Maurice McCabe ensured that the issue remained in the public spotlight. In January, he had appeared before the Public Accounts Committee, a forum he had sought out in desperation after his efforts to highlight the abuse ran into the sand elsewhere.
Sgt Maurice McCabe
A week before Sgt McCabe’s appearance behind closed doors, Callinan gave evidence. In the course of a long day, he responded to questions about McCabe and retired garda John Wilson by suggesting their actions were “disgusting”. The remark generated controversy, but Mr Callinan ultimately appeared to have weathered the storm.
A few weeks later, The Sunday Times published a story that the Garda Síochána Ombudsman Commission (GSOC) had investigated a suspected case of the bugging of its office. Since the business of GSOC was investigating the garda, suspicion for any such actively immediately fell on elements within the force.
Then justice minister Alan Shatter reacted by hauling in the chair of the GSOC Simon O’Brien to be carpeted for not informing the minister that such a probe had taken place. Mr Shatter’s primary concern was not whether GSOC had been bugged, but that he hadn’t been informed of any investigation into the suspected bugging.
The commissioner and Garda associations also condemned GSOC. The controversy rumbled on until a retired High Court judge John Cooke was appointed to investigate the whole affair.
If that wasn’t enough to occupy Mr Shatter and Mr Callinan, Sgt McCabe had more. The turbulent cop met Micheál Martin, at the request of the Fianna Fáil leader one Friday evening in Portlaoise in February.
He furnished Mr Martin with a dossier of at least 10 cases that highlighted incompetence and cover-up within the force. The most serious case involved the release on bail of a man who went on to murder a young woman in 20007. The court which released him had not been informed that he was already on bail for a serious assault.
These cases had all been investigated internally in the force, and Mr Shatter had been informed about them, yet had not seen it necessary to appoint an outside body to investigate. Mr Martin informed Mr Kenny of the dossier and brought his concerns to the floor of the House. Within days, Mr Kenny decided to appoint a senior counsel to do a scoping exercise and determine whether a full commission of investigation was required.
With two probes under way, and the penalty points matter also parked, it looked as if the Government and the force had moved past the controversies for the foreseeable. Then along came the most able of them all, Leo Varadkar to deliver a major headache to his boss.
At a road safety conference on March 20, Mr Vardakdar in his capacity as minister for transport, called on Mr Callinan to withdraw his “disgusting” remarks. He said the service rendered by the two men in highlighting abuses had been “distinguished”.
Four days previously, the chair of the Road Safety Authority Gay Byrne had used his Lyric FM programme to call on Mr Callinan to apologise to the two men, but a government minister adding his tuppence worth cranked up the pressure by a rate of knots.
The following day, Mr Kenny was asked about Mr Varadkar’s intervention. “I’d certainly have a preference that if any minister who has an issue to raise that they raise it at the Cabinet or raise it when we could have discussions or deal with them, rather than have them aired in public,” he said.
The problem was that Mr Kenny and those around him had let the matter sit for two months, and had no intention of saying anything that might generate controversy, irrespective of how valid the issue might be.
Labour quickly moved to ensure they wouldn’t be outflanked on the right in calling for proper accountability in the force. Ruairi Quinn, Eamon Glimore, and Joan Burton all rallied to Leo’s standard.
As the weekend approached, garda sources made it plain that Mr Callinan felt he had nothing to apologise for.
That was the background behind what transpired over the next few days.
On Sunday, March 20, Mr Kenny got word from his attorney general about the telephone recording issue. In the course of preparing for a case being taken against the force and the state by Ian Bailey, the tape recording regime had been discovered in Bandon garda station.
Further inquiries revealed that this was standard practice. Potentially, an appalling vista was opening up. What if there was some privileged material taped? Could this lead to convicted offenders being released from prison?
One way or the other, another controversy was arriving from over the horizon for the government. On the Monday evening, Mr Kenny dispatched the secretary general of the Department of Justice Brian Purcell to the home of Mr Callinan. Despite a close working relationship, it was unheard of for Mr Purcell to visit Mr Callinan at home — not to mention at 11pm — with little notice.
According to Mr Kenny, Mr Purcell was to convey the Cabinet’s concern about the issue that was emerging. Crucially, whatever about his handling of the other controversies, there was precious little blame that could be attributable to Mr Callinan for what was emerging about the taping in stations.
The following morning, Mr Callinan resigned. Later that day, Mr Shatter announced that a commission of investigation was being established into the recording in stations. There was no scoping inquiry, nothing to examine whether this was a serious issue of a ball of smoke.
With Mr Callinan now gone, and a commission set up to investigate the latest scandal, the political heat could be taken out of garda matters.
Except, the manner of Mr Callinan’s departure opened up a new controversy. Was he sacked? If so, the Taoiseach had acted outside his powers. A commissioner can only be removed on foot of a cabinet decision.
Micheál Martin got stuck into Mr Kenny in the Dáil. “You essentially sacked him. You sent a senior civil servant out to the commissioner the day before the cabinet meeting,” he said.
Mr Kenny denied any such allegation — and again claimed after the publication of the report yesterday that he had been vindicated.
In the end, the Government decided to shovel Mr Callinan’s departure into Fennelly. This took the heat out of the latest scandal, but was arguably an abuse of the commission of investigation process. In any self-respecting parliament, questions in relation to the departure of a garda commissioner would be dealt with by a parliamentary committee.
That’s not how we do things here. Fennelly took over a year to investigate an issue that involved interviewing a few dozen people at most, and examining a small number of files.
Three of the witnesses — including the Taoiseach — were recalled by the chairman to give further evidence after a conflict arose.
Finally, there is a result, but one that is unlikely to answer fully the questions about Mr Callinan’s departure, quell the political fallout or the reasons why the matter was not examined in the proper forum of parliament.
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