Thursday 25 August 2016

Shatter's deep anger at Guerin leads to embarrassing face-off at the Four Courts

Published 31/07/2014 | 02:30

Former Justice Minister Alan Shatter outside the Four Courts in Dublin where he is challenging the findings of the Guerin Report. Photo: CourtPix
Former Justice Minister Alan Shatter outside the Four Courts in Dublin where he is challenging the findings of the Guerin Report. Photo: CourtPix

Now the Shatter has really hit the fan. And, the government.

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Technically, Alan Shatter’s court challenge is being taken against Sean Guerin, the author of the report that proved to be Shatter’s Waterloo.

But in practical political terms, it’s Shatter v his old cabinet colleagues.

The idea of a former government minister bringing judicial review proceedings in relation to a report, commissioned by the government he was a part of, is extraordinary and surely unprecedented.

Enda Kenny would be forgiven for invoking Henry II’s immortal line about his close friend turned foe Thomas Becket: “will no one rid me of this turbulent priest?” Because Shatter, once the Taoiseach’s blue-eyed boy, is proving to be the source of considerable turbulence for the government.

His judicial review raises awkward questions for Kenny & Co. Firstly, do they formally involve themselves in the legal challenge or leave it to Guerin to instruct senior counsel?

Guerin was the author of the report, but he was acting on behalf of the government in doing so. If they don’t get formally involved what message does it send out to those who, in the future, the government approach to conduct such reports? “We’d like you to conduct this report but, by the way, if there’s a legal challenge, you’re on your own”?

But then if they do formally get involved then it is literally ‘Shatter v the cabinet’.

The strictly non legal view among politicians is that Shatter might win his judicial review on the basis that Guerin did not interview him prior to reaching his conclusions.

That failure has prompted much head scratching around Leinster House.

Legally, it’s not so clear cut. There is the old, but fundamental, legal principle ‘Audi alteram partem’, which essentially means hear the other side too. Shatter will argue that, by not being interviewed, his right to be treated fairly was not adhered to.

But Alan Shatter wasn’t on trial. It could be argued that Guerin’s report was not specifically into the Justice Minister’s conduct (although it did ultimately reflect on him). The terms of reference, for example, were far more focused on the gardai than the Department of Justice/Shatter.

Furthermore, it wasn’t a statutory inquiry, such as a Tribunal, or a Commission, of Inquiry — merely, a preliminary/scoping report, in advance of a Commission of Inquiry. Presumably, the Guerin/Government line will be that the traditional requirement to hear the other side did not apply for that reason.

Shatter’s legal attack goes far beyond this point though, alleging ‘objective bias’ on the part of Guerin. Government figures will be awaiting with interest to see where Shatter’s counsel Patrick O’Reilly goes with that one when the Judicial Review begins.

“Objective bias” is little more than the technical possibility of being perceived to be biased for whatever reason.

It’s very difficult to see how it applies to the Guerin report.

But the fact that Shatter is legally speaking throwing the kitchen sink at Guerin’s report demonstrates how deep his anger is at how he feels he has been treated.

He must know that this case will be an embarrassment to the Government. But the sense of injustice he feels clearly runs far deeper.

There is little sympathy for that among his former colleagues, many of whom feel he was the author of his own difficulties. And there must be a growing frustration at the Government’s inability to break away from this story, despite an assured performance overall from Shatter’s successor Frances Fitzgerald.

Already this week, we have had three major stories dominating the news agenda on the subject: The review into the Department of Justice and the secretary general’s request to be reassigned; Shatter’s legal challenge and also claims that the Taoiseach failed to act on warnings from one of his own TDs on the whistleblower controversy last February.

John Deasy reportedly told Mr Kenny that Sgt Maurice McCabe’s evidence to the Public Accounts Committee was credible. And he said that Shatter, the Department of Justice and the Government were failing to deal properly with those complaints.

The Government rejects the charge of inaction against Kenny, pointing to the establishment of the Guerin report as evidence of his intent. But in politics once you’re explaining, you’re losing.

And right now, the Government is doing an awful lot of explaining in this area.

Shatter’s judicial review, and in the longer term the Fennelly inquiry into allegations of phone taping of conversations in Garda stations, mean these controversies are far from over.

There’s little ministers can do in relation to Shatter’s legal action other than suck it up. The possibility of him winning his case to quash some of Guerin findings might be causing some discomfort however.

What happens then? Alan Shatter is hardly going to be reappointed to cabinet however vindicated he might feel by such an outcome. But it would prove an embarrassment for the Government.

And they’ve had more than enough of them in the justice area in the past 12 months.

Shane Coleman is the presenter of the Sunday Show on Newstalk 106-108FM.

Irish Independent

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