Reflecting on Fennelly: After Fennelly and Toland, what now?

Mark Kelly observes little sign of the ‘sea change’ promised in justice and policing

JUDGE Fennelly’s core factual conclusions about Garda-related events in March 2014 can be captured in a great deal less than the 283 pages of his interim report.

The judge’s terms of reference, set by the Government, were narrow: To clarify the fate of a letter about Garda taping written by former commissioner Martin Callinan to former secretary general Brian Purcell, containing information for the attention of former justice minister Alan Shatter, and to determine the sequence of events leading up to Mr Callinan’s retirement, just 15 days after he wrote that letter.

Reflecting on Fennelly: After Fennelly and Toland, what now?

Martin Callinan

His conclusions are stark: Mr Callinan’s letter, which contained information that could have changed the course of events, was not given to Mr Shatter until after Mr Callinan had retired.

The judge regrets to find that Mr Purcell “failed in his duty as secretary general by not telling the minister of the letter or its contents”.

Mr Callinan retired after a late- night visit to his home by Mr Purcell ordered by the Taoiseach. The judge accepted the Taoiseach’s assurances “given in good faith” that he did not intend to put pressure on the former Commissioner to retire, but found that Mr Purcell’s visit “viewed objectively” was likely to be interpreted as doing just that.

Reflecting on Fennelly: After Fennelly and Toland, what now?

Brian Purcell

Much of the political speculation around Fennelly’s report has focussed on the precise role played by the Taoiseach in relation to Mr Callinan’s retirement. This is because Garda commissioners may be lawfully removed from office only by the government (not by the sitting taoiseach) for stated reasons, and subject to procedural safeguards set out in legislation.

The constructive dismissal of a Garda commissioner by a taoiseach would be a violation of both employment law and the Garda Act 2005. This point is sure to be ventilated in the Dáil if a motion of no confidence against the taoiseach proceeds; however, in the absence of any other legal action by the former commissioner, it seems unlikely that further clarity will emerge.

What is clear from Fennelly’s report is that Mr Callinan’s retirement followed “serious information deficits and multiple failures of communication” within the Department of Justice and Equality.

If this language sounds familiar, it’s because it echoes the findings of the Toland Report, an independent review of the department published in July 2014.

It identified issues including:

  • A closed, secretive and silo driven culture.
  • Significant leadership and management problems.
  • Ineffective management processes and structures to provide strong strategic oversight to key agencies both to hold them accountable and to ensure their effectiveness is maximised.

Toland’s report set out detailed recommendations for “fundamental and sustained organisational change and renewal”.

Has fundamental and sustained change taken place? If events similar to those examined by Fennelly were to recur tomorrow, would the outcome be different?

The Taoiseach’s statement on the Fennelly report says that a “programme for change and a new strategy statement for the department have been finalised and are now being implemented” and the minister for justice has made similar claims.

However, it is astonishing that, more than a year after the former secretary general vacated his post (in the wake of the Toland report), his permanent replacement has not been appointed. So who is leading the root-and-branch reform of the Department of Justice on behalf of the minister?

Enda Kenny and Frances Fitzgerald have also pointed to the decision to establish a new Policing Authority as a response to the Fennelly Report. Mr Kenny has claimed it will bring a “dedicated layer of public oversight to the administration of policing services”. Again, the reality is rather different.

Reflecting on Fennelly: After Fennelly and Toland, what now?

Enda Kenny

The Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015 has yet to become law and represents a significant watering down of previous proposals.

The Department of Justice (and/or the minister herself) will retain effective control over a broad spectrum of Garda policy matters that could have been transferred to the authority.

The Government has already handpicked its preferred chairperson designate and, if the legislation passes the Dáil in its current form, the other eight initial members of the authority will also be political appointees, who may be reappointed without recourse to open and transparent procedures.

This is hardly the “sea change” in policing accountability that was promised by Frances Fitzgerald when she replaced Alan Shatter in May 2014.

During five turbulent months last year, a Garda commissioner, a secretary general, and a justice minister all left their posts in controversial circumstances.

Judge Fennelly’s interim report reaffirms the need for profound reform of the management, delivery and oversight of Garda policy. Kevin Toland’s report, published more than a year ago, sets out recommendations that could make that reform a reality.

Minister Frances Fitzgerald has rightly been given credit for steadying the ship at the Department of Justice and Equality. Will she now have the gumption to clear the decks?

Mark Kelly is executive director of the Irish Council for Civil Liberties

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