News Colum Kenny

Thursday 21 August 2014

Enda Kenny's error requires an explanation

The public should be told who briefed Enda Kenny before his statement on the Garda Ombudsman’s duties

Colum Kenny

Published 16/02/2014 | 02:30

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Taoiseach Enda Kenny. Photo: Collins
Taoiseach Enda Kenny. Photo: Collins

In a key statement last week, a stern Taoiseach misinformed the public about the duties of the independent Garda Ombudsman. How and why did he do so?

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Enda Kenny’s intervention, set out below, was repeated uncritically across news bulletins on Tuesday. It may have tilted the Ombudsman into later expressing regret for not earlier informing the Minister for Justice that it had suspected that gardai bugged its offices.

Coming on top of Minister for Justice Alan Shatter using confidential Garda information to discredit on television a political opponent, Enda Kenny’s intervention further politicised the current row over Garda standards. The Taoi-seach later declined an invitation in the Dail on Wednesday to make it clear that the commission was not obliged to report everything to the minister. He insinuated instead, with no clear basis, that an expression of regret by GSOC in respect of not reporting certain matters amounted to an acceptance that it had no discretion.

We shall assume that Enda Kenny did not mean to mislead the public, not only because of the defamation laws but because it is unthinkable that a Taoiseach would deliberately lie. However, given the serious nature of his error, the public is entitled to know who briefed him. Surely his Minister for Justice realised that the public was being badly misinformed?

And whose interest was served by the leaked story that GSOC  had brought in technical experts  to check for bugs? Certainly not that of GSOC itself, that had decided to keep this fact a secret for reasons that are understandable when one reads below the law  that the Taoiseach misquoted.

There will have been few tears shed last week by gardai who have resisted the GSOC watchdog getting increased powers or who fear the results of a probe into penalty points and other complaints by whistleblowers.

The Ombudsman’s opponents succeeded last year in preventing GSOC from gaining direct access to Garda Pulse system records, although that decision by the Government has recently been reversed in respect to access for the penalty points investigation alone.

The Garda Commissioner did not hold back last week when he issued a statement, expressing at some length his “grave concern” that the Ombudsman had suspected that gardai might be involved.

How could any police overseer not have such suspicions about rogue gardai if it thought that its offices were possibly being bugged? GSOC would have failed in its duty as a body appointed by the President on the recommendation of the Oireachtas if it had not considered all possibilities. But it is still unclear why the Ombudsman seemed to think leaks from its office could in practice have been due only to Garda surveillance. The recent leaking of its own secret internal report on possible surveillance shows that leaks might have come from inside GSOC.

And suggestions that a particular suspected breach of its security could only have been engineered by security forces did not appear to be supported by the Ombudsman’s evidence to a Dail committee last week. GSOC conceded that such equipment might be in other hands unlawfully.

When GSOC realised that its investigations were going nowhere, it decided to say nothing and so avoid spreading rumours. This meant that the Government and Garda Commissioner were taken by surprise last week when details leaked, and they were not pleased.

The Taoiseach told journalists that, “Most importantly, section 80, subsection 5, of the Garda Siochana Act requires [his emphasis when speaking] 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.”

Section 80 actually states, “The Ombudsman Commission may 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.”

But the Act does not “require” this. As one might expect in respect of such an independent watchdog, it is entirely a matter of discretion. The Act is in no way ambiguous.

The next section of the Act demonstrates clearly just why GSOC did not “consider it appropriate” to give the Minister for Justice a report that raised suspicions about the gardai that had not been substantiated. This states, “As soon as practicable after receiving a report under this section, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.” The word “shall” imposes an obligation and indicates that Minister Shatter would have been unable to keep the GSOC report a secret. GSOC would then have been exposed to allegations of scaremongering. Given that one of its principal legal obligations is to “promote public confidence in the process for resolving complaints”, one can see why GSOC parked the matter.

Had the Government demonstrated in recent years full support for the office of the Ombudsman, this row might never have exploded as it now has.

Fine Gael in government has in the past allowed its commitment to law and order to lead it into trouble when it comes to judging what is best for the gardai.

Fine Gael, growing out of Cumann na nGaedheal, showed real mettle after the foundation of this state by standing up to lawlessness and by not avoiding unpopularity if tough action was required to defend the State. But Fine Gael later made errors when some of its ministers thought that a Garda “heavy gang” was a shortcut to protecting the rule of law. Its handling of policing in the Seventies and Eighties did it political damage.

Yet at least one Fine Gael deputy thinks that GSOC ought not to have expressed regret last week. Deputy Billy Timmins questioned its doing so given that GSOC’s decision to suppress its internal report on bugging was made in good faith and in the public interest.

Of course Fianna Fail is not blameless in its handling of police matters, with party political considerations being thought to have influenced its Garda appointments on occasion.

There have long been problems with a minority of gardai, ranging from ill discipline to conflicts of interest to leaks, and the public needs to have confidence that there exists an independent watchdog with sufficient powers to supervise policing. The present inquiry by GSOC into penalty points will be a test of whether or not it is such a body. Recent events have not pulled all its teeth, but may have softened its cough. The whistleblowers do not want their demands for the truth to be adversely affected by political wrangling.

GSOC chairman Simon O’Brien says that the Garda Commissioner called him up last week and suggested that they meet for coffee, which they did for two hours. He expressed regret at that meeting for not having told the minister sooner of GSOC suspicions. Whistleblowers may wonder how easy it will be for GSOC to be firm with the gardai about penalty points after eating humble pie with Commissioner Callinan.

Quite how the Taoiseach waded into developments with what was a strong and evidently misleading statement about GSOC requires explanation. In so explicitly citing a subsection of the Act, Enda Kenny gave great force to his criticism of GSOC. Did he or his advisers not read that section before using it so pointedly?

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