Alan Shatter told that Taoiseach was wrong on GSOC
Documents released by the Department of Justice to the Sunday Independent last week show that civil servants briefed former minister Alan Shatter on the sensitive issue of whether or not GSOC, the garda watchdog, was obliged to tell him immediately of its concerns that it had been bugged.
And that briefing provided no basis for the Taoiseach to make a high-profile and erroneous claim that GSOC was obliged in law to do so promptly.
In a separate development last week, Bob Olson, Chief Inspector of the Garda Siochana Inspectorate, revealed another worrying aspect of policing in Ireland. He highlighted the fact that the garda car fleet is seriously run down.
As the new Minister for Justice Frances Fitzgerald grapples with the need for effective and visible reform of the gardai, and awaits the outcome of an independent review of her department, she has to take steps to restore full confidence in the justice system.
She need not await delivery of that review or of a second report, by Judge Nial Fennelly, before she ensures that her own department has structures in place to deliver fair policing and the rule of law.
Fennelly has been asked by the Government to report on the taping of conversations to and from garda stations, but also on the sequence of events leading up to the retirement of the former garda commissioner in March 2014.
That retirement followed an unprecedented and “unusual” visit to the commissioner’s home by the secretary general of the Department of Justice.
And Fitzgerald herself has said that a third report already “contains deeply disturbing findings”.
This was delivered recently by Sean Guerin SC, on the handling of complaints by garda whistleblowers. It resulted in the resignation of Alan Shatter. Last week Shatter launched a bitter attack on the Guerin Report, under privilege of the Dail.
Guerin found a “near total absence” in the papers that he examined of written records of submissions made, or advice given, to the minister for justice by his officials.
Guerin said he had seen no written internal records of decisions made by the minister.
However, following a Freedom of Information request, the Sunday Independent has now discovered a written record of advice to Mr Shatter on the question of GSOC not telling him sooner that it thought its office may have been bugged.
With Mr Shatter under growing pressure in February over his reaction to the penalty points scandal and other garda problems, the Government was angered when caught unawares by a leak to a newspaper that revealed GSOC suspicions about the possible bugging of its offices by gardai.
The Taoiseach crossly claimed next day that GSOC had failed in its legal duties by not informing the minister sooner. He told media: “Most importantly, section 80, subsection 5, of the Garda Siochana Act requires that GSOC would report unusual matters or matters of exceptional importance to the Minister for Justice and that’s a fundamental issue that the GSOC board needs to explain.”
But the law did not require GSOC to do so immediately, and the Taoiseach’s error emerged later.
By that time the headlines about the Taoiseach’s comments, (which broadcasters ran prominently without first checking the law), had deflected negative attention on to GSOC and away from the reasons both for GSOC suspicions and for GSOC not telling Shatter sooner.
Yet Mr Shatter had been correctly told earlier about GSOC’s reporting responsibilities. Before 9 o’clock that morning, one of the department’s top officials emailed him that: “While it [GSOC] is independent in the performance of its functions, it is obliged to submit an annual report to you. Also section 80(5) provides the Commission ‘may [emphasis added here] make any other reports that it considers appropriate for drawing to the Minister’s attention matters that have come to its notice and that, in its opinion, should because of their gravity or other exceptional circumstances, be the subject of a special report to the Minister.’”
The assistant secretary continued: “In any case with your overall responsibility in relation to the criminal justice system and national security you would expect to be advised if significant issues had arisen.”
It is evident from this that a cabinet minister was informed that GSOC had a legal duty to make an annual report, but that GSOC might or might not otherwise inform the minister of what it was doing. The minister could well “expect” updates on important issues, but on the issue of bugging GSOC had reasons not to rush to him with details.
The department says that: “Enquiries were made to ascertain whether this email, or the information within, was forwarded to the Department of the Taoiseach. These enquiries have yielded a negative response.”
Last week, some media incorrectly suggested that in his recent report on the GSOC bugging affair Judge John Cooke had found that GSOC failed to comply with some statutory obligation by not telling Mr Shatter about its suspicions before these were leaked to a newspaper. He did not, although he did raise a judicial eyebrow about GSOC not having told Shatter promptly.
Continuing media inaccuracies based on spin, misstatement or the partial release of official reports before they have been considered by Cabinet or published, have distorted reporting of the current garda controversy for some time. It is not necessary to regard any inaccuracies as supine or gullible to deplore this.
GSOC has said that it regrets not telling the minister sooner of its fears, but said so in hindsight after the story leaked to the media and caused a storm.
GSOC might have been more fiercely criticised had it rushed to tell the minister of mere suspicions about garda surveillance at a time of great political sensitivity in respect to the gardai.
Meanwhile, the new Minister for Justice has a lot on her plate. Besides reforming her department and the gardai, Frances Fitzgerald must keep an eye on law and order.
Most gardai want to do a good job. In this area, as in other sectors of the public service, the best employees have been let down by a political failure to reform structures and to maintain the highest possible standards in public life.
Faced by dangerous criminals, dedicated public servants at the Department of Justice and elsewhere are not helped by resource shortages due to the bank bailout or by politicians who continue to try and meddle in prosecutions.
It is vital to have a justice system that people can trust to act both efficiently and fairly, to fight crime equally and to protect public safety.
With cutbacks making all government more difficult, Ms Fitzgerald cannot wait around for expert reports to solve her problems.