Sunday 23 November 2014

Fitzgerald fails to confront uncomfortable home truths

The Justice Minister is calling for reform of everything, except her own department

Published 27/07/2014 | 02:30

Frances Fitzgerald earlier this month
Frances Fitzgerald earlier this month

We were promised a new beginning and a fresh start.

The dark old days of Alan Shatter's reign over the Department of Justice would be banished to the past.

Smiling approvingly and dressed elegantly, Frances Fitzgerald was supposed to swoop in and undo all the bad decisions made by the "most reforming justice minister in the history of the State".

Media interviews and Dail debates would now be charming affairs rather than dismissive protocol.

Unfortunately, it's been two months and not much has changed. After all, Ms Fitzgerald is still a Fine Gael minister, loyal to Taoiseach Enda Kenny and cut from the same cloth as Mr Shatter.

Undoubtedly, she had her work cut out for her in the wake of the garda controversies which dominated the political landscape for the first five months of the year.

Barrister Sean Guerin's investigation into the garda whistleblower Sergeant Maurice McCabe's allegations of garda misconduct set the tone for her tenure.

She entered office not long after former Garda Commissioner Martin Callinan stepped down and was replaced by his deputy Noirin O'Sullivan, who now serves as the Interim Commissioner, pending the appointment of a new commissioner.

Since their appointments, the two most senior figures in the Irish justice system have been united in their calls for "reform" and "sea change".

Only last week, Ms Fitzgerald took to the stage at the MacGill Summer School in Glenties, Co Donegal, to tell those gathered about her 'reform' vision.

She mentioned the word "reform" or "reforming" a total of 24 times in her speech.

She spoke about reforming An Garda Siochana, the Garda Siochana Ombudsman Commission (GSOC), the courts and even the health service.

Strangely, she made no mention of reforming the institution she has the most power to influence - namely the Department of Justice and Equality.

She also made no mention of her own department when she penned an opinion piece for the Irish Independent last week which opened with the line: "This is a reforming Government."

During her week-long media offensive, the minister also appeared on TV3 where she was grilled by Irish Independent Legal Affairs Editor Dearbhail McDonald.

Again, not much mention of her own department but she did reveal her thoughts on the early retirement of Mr Callinan following a late night visit from Department of Justice secretary general Brian Purcell.

"I think I'll leave that for the Fennelly Commission," the minister said, referring to the Commission of Investigation into the secret recording of phone calls in Garda stations, headed up by Justice Nial Fennelly.

On May 7, the day of her appointment, Ms Fitzgerald was asked if she had confidence in Mr Purcell - the most senior civil servant in administration of justice in this country. She quite pointedly said she was "reserving her judgement" pending the outcome of a review of the department over which Mr Purcell presides.

Almost a month later, on June 3, she announced the team tasked with carrying out the independent review and gave them a July 11 deadline to report back.

The Sunday Independent has learned the group reported back to the minister two week ago and even completed the review ahead of schedule.

Ms Fitzgerald, however, has not published the report and did not bring it before the final Cabinet meeting before the Dail recess.

Why the minister is reluctant to let the public see this is unclear.

The report may have uncovered some uncomfortable truths about the bureaucracy at the heart of the justice system. Perhaps the problem was not Mr Shatter after all but instead the finger now points at the unelected senior civil servants who surrounded the former minister during his tumultuous tenure.

Mr Purcell's competence was certainly under the spotlight in the weeks leading up to Mr Shatter's resignation.

We still do not know why Mr Purcell failed to pass a vital letter about the controversial recordings of telephone calls in garda stations to Mr Shatter, despite the potentially massive legal issues posed.

Mr Shatter went on a St Patrick's Day State visit to Mexico in March oblivious to the implications of the controversial tapes and only learned of their existence after he was called before Taoiseach Enda Kenny.

Mr Purcell was forced into the unprecedented situation where he was asked to compile a report on his involvement in the tapping scandal, which undoubtedly contributed to resignations of Mr Callinan and Mr Shatter.

Then there's the Guerin report.

Mr Shatter only read three chapters of the damning report on Sgt McCabe's allegations of garda negligence before he had to sling his hook. Chapter 19, which Mr Shatter read before his resignation, gives extensive details of Sgt McCabe's correspondence with the department over a five-year period.

Sgt McCabe spent three years hitting brick walls in the force and through official whistleblowers' channels.

In September 2012, after all else failed, he sent three booklets detailing alleged "malpractice and corruption" and asked Mr Shatter to establish a statutory inquiry.

The documents alleged serious crimes, including sexual assaults, false imprisonment and falsification of garda records, were not properly investigated.

The murder of Sylvia Roche-Kelly by Gerry McGrath after he was twice released on bail was among the cases.

In the following six months, Department of Justice assistant secretary Michael Flahive wrote to Sgt McCabe's solicitor several times asking if he objected to the documents being sent to the Garda Commissioner's office.

Sgt McCabe's solicitor did not expressly object but he did not give permission either.

He did, however, say Sgt McCabe had lost all faith in the Commissioner's office.

During this time, Mr Shatter asked his officials to get advice from the Attorney General's (AG) office on what he should do with Sgt McCabe's evidence and if he should establish an inquiry.

The AG's advice was received by the department in December 2013.

It advised that two of the booklets should be sent to the Garda Commissioner and the third sent back to Sgt McCabe because the claims were the subject of an ongoing court case. Despite instructing his officials to get the advice, Mr Shatter was never given a copy of the AG's letter.

On May 22, 2014, in a letter to the Taoiseach after his resignation, Mr Shatter claimed he only learned of this letter on reading the Guerin Report.

Mr Shatter said he requested advice as he was concerned there was a "gridlock" in correspondence between his office and Sgt McCabe's solicitor.

"Based on oral advices I was receiving from my officials, I was stymied in taking necessary steps to get to the root of the allegations made," he wrote.

"Unfortunately, for reasons I do not understand, despite my asking advices be obtained, I was never informed by Justice officials of the letter nor furnished with a copy of it," he added.

The Taoiseach's department choose to redact a critical part of Mr Shatter's letter when it was released under the Freedom of Information Act. However, the Sunday Independent has seen the paragraph in which Mr Shatter reveals the AG actually advises against launching a statutory inquiry into Sgt McCabe's claims.

This obviously contradicts the outcome of Mr Guerin's investigation which called for a Commission of Inquiry.

In May, when Mr Purcell appeared before the Oireachtas Justice Committee, he revealed he not only failed to give the letter to the minister but did not even follow the AG's instructions to give the booklets to the Commissioner.

When asked why, Mr Purcell said "events overtook what was happening", referring to the garda controversies engulfing the department.

Of course, Ms Fitzgerald is well aware of all of this and was perhaps aware when she ordered the independent review of her department.

Well-placed sources told the Sunday Independent the review is very critical of both Mr Purcell and Mr Flahive.

Those involved in the process are said to be "very surprised" the minister did not bring the report before Cabinet. When asked about the status of the review this week, a Department of Justice spokesperson simply said there is "no information".

Ms Fitzgerald may have encountered her first real hurdle in her race to reform the justice system.

Sunday Independent

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