Sins of omission
Sins of omission
The Guerin report left Alan Shatter with nowhere to hide — and Frances Fitzgerald with a near-impossible task to win back the trust of the nation
The Guerin report left Alan Shatter with nowhere to hide — and Frances Fitzgerald with a near-impossible task to win back the trust of the nation
“The paradigm of the whistle-blower is an unattractive one. The whistle-blower, like the referee from whom he gets his name, is seen as someone who is not on the team.”
On Saturday, Fianna Fáil faced an internal crisis when its former deputy leader defied party orders and submitted nomination papers — obtained in a hasty, and hastily-abandoned, two-candidate plan — to run alongside/against the ‘official’ party candidate in the local elections.
Its younger breed of local candidates were up in arms — seeing the return of Mary Hanafin as anathema to the programme of ‘#ffrenewal’ they had put so much work into for the previous three years. Members of the front bench were quietly questioning whether the party leadership was now an open question.
On Sunday, Sinn Féin’s president was released after four days in the serious crime suite in Antrim being questioned about his alleged role in the murder of a widowed mother-of-ten in 1972.
The party, as it had for those four days, cried foul and complained about the politicised timing. It feared that the reminder of Sinn Féin’s association with the darker times in modern Irish history could torpedo its chances in the European Elections — and, moreover, that its performance in the polls directly influenced the timing of Adams’ arrest.
On Tuesday, the government agreed the fine details of a new charge for something the public already pays for, which will nominally cost the average family €248 a year, but probably far more.
The deal came 20 days after a previous cabinet meeting led to a blaring row between Fine Gael and Labour — perhaps the biggest since they decided to share power — and 17 days before the country went to the polls in the biggest single test of their grip on power.
And yet, none were the biggest story of the last seven days. Truly, a week is a long time in politics.
The package arrived at Government Buildings on Tuesday night, with three paper copies and a USB key carrying an electronic edition. The thousand-page bundle was preceded by a two-page cover letter, where its author apologised for missing his prescribed deadline and asked for understanding.
Sean Guerin can be forgiven for running a couple of weeks late. The sheer volume of paperwork falling under the remit of his investigation — into the State’s handling of allegations of serial Garda malpractice — was mammoth, with no shortage of delicate detail to be pored over.
Guerin needed ten weeks to get his report finalised and submitted. It took Enda Kenny and Alan Shatter only a few hours to realise that, for the latter, the game was up.
The Taoiseach meet with his Attorney General, Máire Whelan, at 6am on Wednesday morning. By 9am he had discussed the gravity of the report with Alan Shatter, the political figure at the centre of its contents. The two would be spending the morning at Arbour Hill for the annual 1916 memorial Mass, but neither would be able to escape the consequences of the report — or, in all likelihood, rid its contents from their minds.
The previous evening — probably just as Guerin’s report was being delivered to Merrion Street — it had emerged that the Data Protection Commissioner had upheld a complaint by the maverick independent TD Mick Wallace; amid the various demi-scandals involving Shatter in some way, the most low-profile inquiry had concluded that the Minister for Justice & Equality had broken the law by revealing privileged information in a live TV debate against a political opponent. The very fact that the minister responsible for lawmaking had been found breaking one was grounds, in many eyes, for Shatter to go.
The dignitaries all sat on one side of the military chapel in Arbour Hill for Wednesday morning’s ceremony, with the members of cabinet together in a row behind the Taoiseach and Tánaiste. Shatter sat at the very end of their pew, nearest the aisle — alongside, but not amongst, his ministerial colleagues. That aside, there was nothing in his body language to suggest any unusual actions: on his arrival he had met Eamon Gilmore with an enthusiastic handshake, and alongside the graveside of the 1916 martyrs he had a lengthy (and outwardly enthusiastic) chat with the Chief Justice, Susan Denham.
The graveside ceremony began in piercing sunshine, but within half an hour the typically Irish weather had turned from glorious to gruesome. Perhaps it was a sign.
The graveside ceremony wrapped up at 11:40pm; five hours later, the Taoiseach was in the Dáil, “reluctantly” announcing Shatter’s resignation.
In his letter of resignation — written in the hours after his 9am meeting with Kenny — Shatter made an implicit suggestion that he wasn’t entirely happy with the findings made against him. Guerin’s terms of reference instructed him to interview not only Maurice McCabe, but “any other such person as may be considered necessary and capable of providing relevant and material assistance”.
At no time did he ask to interview me, and I would have expected, if it was his intention to reach a conclusion or form an opinion with regard to my approach or the extent of my concern with regard to the issues raised by Sergeant McCabe, that he would have done so.
But while his departure would be later heralded as a belated admission of wrongdoing, the formal wording of his resignation carried no acknowledgement whatsoever of a failure of duty. Shatter did not resign because of the adverse findings against him — he resigned because the point of being in politics is to be in power.
“I am anxious that any controversy that may arise on publication of the Report does not distract from the important work of Government or create any difficulties for the Fine Gael or Labour Parties in the period leading into the European and Local Government elections. It is my judgement that the only way in which such controversy can be avoided is by my offering you my resignation from Cabinet.”
The Guerin Report was staggering, at least on a political level, partly from its depiction of Alan Shatter — damned more for his inaction than his action.
Shatter is famed for his prodigious work ethic; he is a famously early riser, regularly in the office before 6am, and reckoned to be the most prolific opposition legislator in the history of the Dáil. (It’s possibly also the case, given the enormous body of draft laws he has brought since becoming a minister, that he is also the most prolific government legislator in history too — even despite having only three years in power.) Yet the report found that, in cases where perhaps it mattered most, Shatter’s sole response when presented with allegations of Garda wrongdoing was simply to send the complaints back to An Garda Síochána itself.
The report notes several instances where, having come up against brick wall after brick wall through the internal mechanisms, Sergeant Maurice McCabe felt no option but to write directly to Shatter.
Two examples are particularly striking. The first involved a complaint made via the Confidential Recipient, about Martin Callinan’s decision to identify ‘Superintendent Foxtrot’ for promotion. Foxtrot was in charge of Bailieboro station during the period encompassing Maurice McCabe’s litany of allegations, and McCabe raised 12 specific incidents which cast doubt over Foxtrot’s actions.
The complaint was duly forwarded to Shatter, and then to An Garda Síochána itself, who found no basis to uphold it.
McCabe wrote back to Shatter suggesting he was “being fed false and misleading information” by Callinan and his force. His solicitors followed up by suggesting a statutory inquiry may be necessary, and sent booklets backing up McCabe’s assertion.
The Department simply replied to say that the matters had already been investigated — and that it essentially considered the matter to be closed.
Guerin wrote:
It is unclear whether or not the documents were ultimately forwarded to the Commissioner […] The initial response of the Commissioner in January 2012 was almost entirely lacking in any detailed account of the substance of the allegations or the conduct and findings of the internal investigation. […] The twelve complaints identified in the confidential report of 23 January 2012 were disposed of in a single paragraph. […]
It is clear that the only action taken on foot of the confidential report was to seek a response from the Commissioner. […] That response appears to have been accepted without question […]
In effect, the process of determining Sergeant McCabe’s complaints went no further than the Minister receiving and acting upon the advice of the person who was the subject of the complaint.
This evidence of a trusting relationship between Shatter and Callinan was nothing new: Shatter had previously asserted that Gardaí were not responsible for bugging the offices of the Garda Ombudsman, simply because the Callinan had publicly said so. However, Guerin’s summary was conclusive, clinical — and clearly damning.
The second striking inaction regarded a complaint not from Maurice McCabe, but his wife Lorraine. In April 2011 she emailed Shatter directly to say another member of the force had issued a death threat to her husband, but that she would not allow him to report it for fear of recrimination.
This was, ultimately, investigated — but not before Shatter’s private secretary replied to point out the existence of GSOC and detailing how she could complain to them. (The reply, to be fair, also said the issue would be forwarded to Callinan given the gravity of the situation.)
Mrs McCabe wrote back:
I had asked the Minister and your office for some help and received none at all. I did expect someone from your office to make contact with me and this has not happened. You acknowledge that the allegation is extremely serious?
Another reply was issued, simply saying the matter would be brought to Shatter’s attention.
Other than to say that the issue was investigated, Guerin’s report makes no further mention of someone making a threat against a Garda whistleblower’s life.
By Wednesday afternoon the speculation had already begun as to who would get Shatter’s job. Initially Frances Fitzgerald did not appear as a frontrunner — but clearly the smart money knew she would be in the shakeup. Paddy Power opened a market shortly after Shatter’s departure, with Fitzgerald at 12/1. By the time the announcement was made, she was 1/7.
Some members of the Leinster House press corps remarked afterwards how unusually watertight the government had been in handling the events of the previous 18 hours. Alan Shatter had taken questions in the Dáil as Minister for Defence — either shortly before, or shortly after, handing in his notice — and nobody had any inkling of the storm that was to follow. (To be fair, this was hardly surprising given that Eamon Gilmore had travelled from Arbour Hill to Dublin West to launch Loraine Mulligan’s by-election campaign, and told reporters he had no idea when Guerin’s report might arrive: it had been delivered to Government Buildings around 20 hours earlier.) Similarly, despite the best efforts of the press corps to glean a confirmation from the various arms of government, the appointments of Frances Fitzgerald and Charlie Flanagan could only be confirmed a matter of moments before the Taoiseach stepped into the Dáil chamber to announce them.
In hindsight, there was one clear sign that Fitzgerald would be promoted. The draft timetable for Thursday afternoon’s Dáil proceedings included a session for speeches on the Children First Bill — which, as the line minister, Fitzgerald was due to attend.
At some point on Wednesday evening, that session was quietly abandoned — the clear implication being that the Minister for Children & Youth Affairs would be in no position to take part in a Dáil debate at the time.
And so it transpired: the Minister for Children & Youth Affairs was not available to take the Dáil debate, because Charlie Flanagan was still in Áras an Úachtaráin being presented with his new seal of office.
Frances Fitzgerald admitted at her first press conference at Government Buildings — not in the usual press centre, but rather on the ceremonial marble steps of the front hall — that she had not yet had a chance to read the report which ended the career of her predecessor.
Despite this, she was already prepared to make up her mind about the source of the complaints. At the end of one question asking her for a general message to whistleblowers — and unprompted by any reporter — she added:
I would pay tribute to the work that Sgt Maurice McCabe has done.
As an indication of a departmental sea-change, it was astonishing.
After Guerin was published the next day, Fitzgerald gave another press conference — this time in the sunshine outside — and promised, essentially, to leave no stone unturned in the bid to restore public trust in the policing system.
“If root and branch reform is what is needed,” she said, “root and branch reform is what will happen.”
At the end of the event she was asked by three different reporters whether she had confidence in the Secretary General of her new department, Brian Purcell — whose administration was also heavily criticised for its shortage of paperwork, leaving no trail of logic or reasoning around the way in which the Department and Minister pursued its obligations. Three times Fitzgerald was asked; three times she failed to state such confidence. The third time, she said:
What I’ve said, and what I will continue to say, is that there are a number of issued raised about the department, in the report, which I have not yet had an opportunity to discuss with the Secretary General and which I intend to discuss with him.
And that question… clearly I want to have a full discussion about a range of issues with the Secretary General. And I am working with the Secretary General, [and] continue to work with him in the relation to the issues identified.
A senior government source later remarked that it would be impossible for a minister to state confidence in someone they had met just once, briefly, for a ‘preliminary’ meeting. There was, however, a grim symmetry: just as with Shatter’s failure to investigate complaints against Martin Callinan, it was the minister’s inaction, rather than any action, which had done the damage.
But the implications clearly went further than Purcell. The government had gone out of its way to stand by Alan Shatter through thick and thin — with every minister making a point, at least on the record, of stating their full confidence in him and the way in which he was handling each various crisis.
I therefore made a point of asking the new Minister — in light of the failures outlined by Guerin — whether she regretted being so fulsome in her previous support.
I don’t think today is the day to comment on the question you’ve asked in relation to Alan Shatter — but I will say I will stand over the fact that Alan Shatter was a reforming minister. And…
New information has emerged in this report. Clearly he made a decision himself, on the basis of this report, that he would offer his resignation, and you know what he would say in his statement.
Clearly what has emerged in this report is of a different quantum. It’s gone into huge detail in relation to these cases, has identified the shortcomings that I’ve spoken about. And in all the circumstances, the minister took the decision that he did.
The previously watertight relationship was beginning to leak a little.
In some ways Frances Fitzgerald is an unlikely choice to become a Minister for Justice & Equality — and certainly the job will present phenomenal challenges. For starters, on a fundamental level, she is now personally responsible for the bulk of legislation produced by government — a striking challenge for someone whose legislative success in the last three years amounts to three Acts, and a referendum on children’s rights which still hasn’t taken legal effect because of a dispute over a biased election booklet produced by her Department.
In some sense, she has perhaps been entrusted with the Justice job because it comes hand-in-hand with the Equality brief. Fitzgerald, a social worker by profession, was perhaps the most liberal Fine Gael member of cabinet after Shatter himself, and entered the Dáil as the incumbent chairman of the National Women’s Council of Ireland.
But if ever a minister would have a baptism of fire, it is Fitzgerald — who has any number of issues to deal with in the 24 months before a new minister may arrive:
She will have to find peace with the solicitors and barristers, who had openly challenged Shatter’s plans to overhaul the legal profession.
She will need to decide whether to continue Shatter’s drive for a ‘one-stop-shop’ structure for solicitors and barristers to work in the same practice — especially given how this may have been driven by Shatter’s own professional experience — in the face of Labour’s open opposition.
She will have to flesh out the Court of Appeal Bill — presumably at some stage in the next few months — to make sure that last year’s referendum takes practical effect by the autumn, as her predecessor had promised.
She will have to preside over the first ever open recruitment process for a Garda Commissioner, and may possibly have to tell the acting Commissioner Noirin O’Sullivan that her previous status, as Deputy Commissioner for Operations in a period condemned by Guerin, rules her out of the running.
She will have to win over her cabinet colleagues — one of whom, Leo Varadkar, today openly claimed her new Department was not fit for purpose.
She will have to rebuild relationships with the various Garda associations, almost all of whom had strained their ties with Shatter in the last three years.
She will have to rebuild Garda morale, at a time when the force is still getting to grips with lesser resources, fewer stations, and fewer members.
She will have to face the consequences of Nial Fennelly’s Commission of Inquiry into the systematic illegal taping of phone calls in Garda stations for decades.
She will have to deal with the findings of Justice John Cooke’s report into alleged bugging of the Garda Síochána Ombudsman headquarters — due in the next few days.
She will have to deal with the ultimate findings of the Commission being set up to investigate Maurice McCabe’s allegations, and carefully apportion blame between her own surviving senior civil servants and the predecessor she supported until the very end of his tumultuous tenure.
She will need to examine the Personal Insolvency Act and determine whether it’s effectively fit for purpose, given that the biggest single financial burden on many people — the cost of serving a mortgage for a house they can no longer afford — is also proving the single biggest barrier to entering the system.
She will have to be happy to do all of this work as an effective ward of court — bringing all of her ideas through a Cabinet Sub-Committee on Justice Reform which was set up almost specifically to give Labour great supervision of Shatter’s work.
She will have to decide whether to appeal the Data Protection Commissioner’s finding that her predecessor breached Data Protection law in his politically charged comments about Mick Wallace. (The complaint was made against the Minister for Justice & Equality, specifically — i.e. the holder of the office, not Alan Shatter as an individual.)
But most pressingly, she will have to preside over the biggest overhaul of policing architecture in the country’s history — a period which will probably require a fundamental rethinking not only of the role of the Garda Ombudsman, but also the creation of a new independent policing authority (which will still have to be responsible to someone else), and perhaps — depending on the outcome of future reports or commissions — of the very Garda Síochána itself.
And she, and the government, will have to do all of this with Alan Shatter, the ghost of crises past, watching from the backbenches.
They say if you want something done, you should ask someone busy. Time will tell just how true that may be.
A week is a long time in politics.