Thursday 23 October 2014

Don't rely on our leaders to cut through the fog

Both the Taoiseach and Justice Minister seem inordinately keen for us to forget the whole affair, writes Brendan O'Connor

Published 16/02/2014 | 02:30

Minister for Justice Alan Shatter
Minister for Justice Alan Shatter

YOU will hear a lot of people giving out about the "scandal of the week" syndrome that Ireland seems to suffer from at the moment. Nearly every week, something seems to bubble up and then bubble down again, or at least go away for a while.

People talk about this cycle as if it was a bad thing. But you could look at this another way, and decide that the flaring up of these scandals is a testament to increased transparency in this country. You could view it too as a symptom that the Government is doing what it should be doing, and dealing with the issues of the day, instead of everyone just obsessing about the economy. You could argue as well that the speed with which things bubble up now is better than the way they would have rumbled on back in the good old days.

The GSOC scandal has moved remarkably fast even by the standards of other recent bubble ups like Irish Water and CRC and the Garda whistleblowers. The story was revealed in the Sunday Times, and then, having stalled initially for a day, followed by some faffing by the Government for another day or two, by Wednesday we got some proper answers in a Dail Committee. It almost felt like openness and democracy. At times.

I say 'at times' because there were times in the past week when it felt like the opposite of openness and democracy. In what was a confusing story to start with, you certainly wouldn't have been relying on the Government to make things any clearer for you. If we hadn't had the clarity and directness of seeing two of the principals respectively on Prime Time and at the Committee on Public Service Oversight and Petitions, then we would have probably believed the opposite of the truth.

The Taoiseach himself kicked off the muddle by insisting that, under law, the Garda Ombudsman's office should have told the Justice Minister about its security concerns. This was repeated by other members of the Government. In fact, this was just not true. Eventually, after two days of the Government making this assertion, the Taoiseach conceded under pressure in the Dail on Tuesday night that this was not true, that the relevant Section 80 of the Garda Siochana Act 2001 said that the GSOC "may" tell the minister about matters like this. The Taoiseach then announced that we had put it all behind us now and we could move on.

It is not clear why the Taoiseach misled everyone about the law. Was he so keen to make the GSOC the villain of this piece that he forgot to check the law? Neither is it clear why he was so keen for us all to move on. Indeed, both the Taoiseach and the Minister for Justice seemed inordinately keen for us to move on from this whole issue. Given that this is one of the most interesting, and potentially sinister, things that has happened in a while, it's baffling why they are so keen for us to forget it ever happened.

Alan Shatter's attempt to move us on consisted of him getting up in the Dail and saying this was a routine sweep, that there was no definitive evidence of bugging and that the gardai had been subjected to baseless innuendo. The minister, note, said all this, after he had spoken to Simon O'Brien from GSOC for two hours and after he had been given a written briefing from O'Brien.

But you have to wonder if the minister had really listened to Simon O'Brien, or at least asked him the right questions. Because on Wednesday we all got a briefing from Simon O'Brien courtesy of the Committee on Public Service Oversight and Petitions. And while O'Brien did say that technically there was no definitive evidence of bugging, this was clearly a man who believed he had been bugged. We had already heard his colleague Kieran FitzGerald on Prime Time telling us that the chances of this not being bugging were "remote to zero".

But Simon went further in front of the committee, saying essentially that yes, we were bugged and we thought it was the gardai wot did it. O'Brien also claimed in front of the committee that the sweep for bugs was not routine, as the minister said, and as had been intimated, in fairness, in the written brief supplied by Simon O'Brien to the minister. In front of the committee O'Brien said the sweep was because internal GSOC business was getting into the public domain and because essentially GSOC suspected it was being bugged. As ex-ombudsman Conor Brady put it, GSOC was becoming increasingly concerned that gardai sometimes appeared to know more than GSOC thought the gardai should have known.

You had to wonder, was this the same guy who briefed the minister? The minister went on Prime Time on Thursday to say it was, and to say that what he had said to the Dail was all based on a written briefing and a spoken briefing from Simon O'Brien, and oddly, on the press release issued by GSOC.

The minister was at pains to point out that as far as he had been told by Simon O'Brien, the

bugging represented mere potential threats, anomalies and vulnerabilities and that the narrative that had grown that the office was definitely bugged represented "everyone losing sight of things". You found yourself wondering if, in fact, it was the minister who was a little out of touch with the reality of the whole situation. While he basically insinuated that maybe the people from GSOC had got tired in a very long committee hearing, became confused and changed their story, you found yourself wondering if the minister was tired. People did not just lose the run of themselves and decide the GSOC offices were being bugged. Two senior GSOC people had said as much.

The briefing note given to Shatter did say that GSOC suspected the gardai of bugging its offices. The only reference Alan Shatter made to this when talking to the Dail was to talk about baseless innuendoes against the gardai. It all seemed odd. Then you wondered if the minister was perhaps dancing on pinheads. As a lawyer, was he clinging on to the notion that there was no conclusive evidence of bugging and therefore no bugging had occurred?

If he was clinging on to this, he was ignoring a core point that has been made by several people in the past week, perhaps most notably by Sinn Fein's Padraig McLochlainn and by John Mooney of the Sunday Times. There was never going to be definitive evidence. Part of the essence of modern surveillance is that it leaves no fingerprints. So no one could claim conclusive evidence. But unless you accept that it was a coincidence that a phone in GSOC's office suddenly rang at 1am, called from a hidden number, straight after a lure to test for bugging was sent down that line, then there was bugging. According to what Simon O'Brien told the minister, "The Verrimus Operation judged that the likelihood of a wrong number at the time of the alerting test was so small as to be at virtually zero." Which is still, technically, not definitive evidence but which does essentially say they were bugged.

The question now is where we go from here? The Government is absolutely opposed to an inquiry. Some people on the Committee on Public Service Oversight and Petitions want an inquiry. Others, like Senator Susan O'Keeffe, do not want an inquiry. What Susan O'Keeffe, very sensibly, would like is for the committee to be allowed to continue to do its work.

Anyone interested in the truth and democracy would opt for the committee to continue its work. We clearly can't trust the Government on this. We can't trust the Taoiseach to know the law. We can't even trust the minister to get out of Simon O'Brien what Simon O'Brien thinks happened. The only place we have seen any openness and transparency is in the media and at the committee. We could set up an inquiry that would go away for six months and come back with some vague conclusions. But would we not all prefer to do this in real time? Would we not all prefer to see it done openly and urgently? Would we not all like to see the minister explain his side of things to the committee next week? Would we not all like to stay on the trail of this one while it's fresh and get a conclusion quickly?

We know from the whistleblower fiasco that the powers that be in this country are no fans of scandals being aired in Dail committees. That in itself should probably be reason enough for us to support the Oversight Committee in its work.

Sunday Independent

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