News Colum Kenny

Tuesday 23 September 2014

Shatter may win the battle but he has lost the war

The real problem at Justice was actually a failure of politics

Published 03/08/2014 | 02:30

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ACTION: Alan Shatter claims he was treated unfairly as justice minister. Photo: Photocall Ireland
ACTION: Alan Shatter claims he was treated unfairly as justice minister. Photo: Photocall Ireland

If the Taoiseach had sacked Alan Shatter the morning after Shatter revealed on television confidential data from garda files about Mick Wallace, then the former Minister for Justice would not now be taking a High Court action.

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But the Government backed him, and continued to back him until long after his handling of the garda penalty points scandal made him a political liability.

After the scandal escalated, and after former Garda Commissioner Martin Callinan felt compelled to resign, the Government asked barrister Sean Guerin to investigate aspects of the Department of Justice's handling of whistleblower Sergeant Maurice McCabe.

Guerin's report made Shatter's position as minister untenable, and Shatter quit.

He is objecting strongly to the circumstances of his departure, claiming last week in the High Court that he was unfairly treated by Guerin.

He is even saying that Guerin should never have been appointed to conduct such an investigation. Guerin had sat on a committee of the Bar Council (the barristers' professional association) that opposed aspects of Shatter's Legal Services Bill.

Shatter is not saying that Guerin was actually biased, you understand. Just that he might be "perceived" by a reasonable person to be biased. Any such perception can be enough to have a court quash official decisions, assuming you have the resources to challenge them in court.

Some barristers perceive Mr Shatter, a solicitor himself, to be biased when it comes to proposing changes in the legal profession. But their 
objections to his Legal Services Bill were on the level of policy. His objections to the Guerin report are more personal.

Shatter claims that the Guerin report effectively forced him from office, and that it inflicted "severe and irreversible" damage on him politically. While the report seems unlikely to have major financial implications for him as a successful solicitor or as a landlord, it undoubtedly delivered a fatal blow to his tenure as minister.

It is quite striking that Guerin did not choose to interview Mr Shatter before completing his report, and did not secure certain relevant information from GSOC before reaching his conclusions.

At the end of the day, Shatter chose to resign. He could have stayed on. Had he stood his ground and then been sacked by Taoiseach Enda Kenny, would he now be trying to have the Taoiseach's decision to sack him judicially reviewed as an injustice?

To some observers, Shatter's political reputation had already been shredded long before Guerin's report.

Both Fine Gael and Labour politicians - including on at least one occasion, Alex White, who has since been promoted - robustly defended the handling of whistleblower allegations. They were encouraged by some media coverage.

But many observers thought that Shatter was a politicial liability long before Guerin's report.

Shatter's attitude towards the garda whistleblowers had come to seem too personal and strained.

Shatter may have valid technical points to make about Guerin's methodology; the High Court will decide.

But the expense of this action to Mr Shatter and to the taxpayer could have been avoided had he been dismissed when he earlier blurted out unproven garda accusations about Mick Wallace on television, in what looked like a blatant attempt to smear a political opponent.

That the Taoiseach let him away with it lowered the standards of public life in Ireland.

The Taoiseach's failure to act then encouraged Shatter, as did the Labour Party's compliance.

That failure led directly to a situation where the Garda Commissioner felt forced to resign and the secretary of the Department of Justice is now moving on.

Last week an 'Independent Review Group on the Department of Justice and Equality' issued a new report. This "independent" group was actually appointed by Frances Fitzgerald, Shatter's successor as Minister for Justice.

Its report is full of high-flown language about poor management systems. It will be used by the Government to paper over political cracks caused by the garda whistleblowing scandal.

But the group acknowledges that, in fact, "the Department is extremely conscientious in following the law. The Department's staff are very careful to be correct in everything that they write, respond to and implement."

And even if all of the recommendations of the review group had been in place two years ago, it might well have made no fundamental difference to how the whistleblowers were handled.

For what went wrong in the whistleblower scandal was not ultimately a failure on the part of civil servants. No single civil servant should be made a scapegoat for what was essentially a political shambles.

Mr Shatter and his colleagues should have recognised the problem sooner and dealt with it better. It was a political challenge that this Government failed. Mr Shatter may win his legal battle in the High Court, but he has lost the political war.

Sunday Independent

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