Monday 24 October 2016

Jody Corcoran: No wonder the State is in such a state

Fennelly Commission has laid bare a crisis that exists within the entire system of public administration, writes Jody Corcoran

Published 06/09/2015 | 02:30

Mr Justice Nial Fennelly
Mr Justice Nial Fennelly

Just over a year ago, an independent review highlighted a "closed, secretive and silo driven culture" in the Department of Justice. The Guerin Report said there were "leadership and management" problems; "ineffective management processes and structures"; the department was not "sufficiently focused on key strategic priorities"; emerging issues were not "identified and managed proactively"; relationships with key agencies tended to be "informal and unstructured without strong central management".

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Last week, the Fennelly Commission showed these controversial, and contested, findings to be true, and highlighted further pressing concerns besides.

The commission report shows that issues related to the Department of Justice are more widespread, can be said to relate to the criminal justice system as a whole and also - more alarmingly - could extend to the entire system of public administration in this country.

In my view, this is among the most - if not the most - troubling findings to be drawn from Mr Justice Fennelly's report.

The commission had the benefit of evidence from Sean Aylward, who was Secretary-General of the Department of Justice from 2004 to 2011.

On one hand, Mr Aylward painted a picture of the gardai and the department across all issues: "On a daily basis, there could be dozens of phone calls and text messages flowing from... the commissioner of the day to me, and then in turn from me to the minister."

He said that "an astonishing amount" of communication was through text messages and that would be "through the night, often all hours of the day and night, continuous... it was absolutely continuous."

These texts referred, typically, to breaking crime stories as they happened, such as drug seizures, robberies, assaults, shootings, knife attacks, murders, road traffic accidents and arrests. Some related to individual gardai who had appeared before the courts.

Leaving aside the security concerns related to the text message method of communication, Sean Aylward also highlighted another issue: he said the process leading to a decision was never the subject of record keeping.

At one point, Mr Justice Fennelly said it was "striking" how little documentary evidence was available; important decisions were not formally recorded and were communicated orally; such work practices made it very difficult to identify what decisions were made, by whom and for what reason.

He was talking about the extent of information known within the gardai and the extent to which that information was made known to the Garda Commissioner and, in turn, to the Department of Justice, specifically the Minister for Justice.

It took five months from the moment details first emerged in relation to recordings of telephone conversations into and out of garda stations to make their way to Martin Callinan and, eventually, to Alan Shatter.

Evidence emerged that the two most senior officers under Mr Callinan, of equal rank, who each reported directly to the commissioner, were of the view that responsibility for briefing the commissioner on the recordings issue as it developed lay with the other person.

From other accounts, it seemed clear to the Fennelly Commission that, when the then Garda Commissioner briefed the Attorney- General's office in November 2013, he was unaware of several important pieces of information that had been reported in writing by one of his superintendents, giving rise to a "significant information deficit" so far as the A-G's office was concerned.

There was also evidence that staff in the A-G's office expected the task of informing the department to be taken on by the gardai.

But Mr Callinan told the commission he had always assumed that the A-G's office would copy the department with any advice given to the gardai.

Indeed, Mr Justice Fennelly received conflicting evidence as to whether a practice existed of the A-G's office copying advice to the department.

At another point, Mr Callinan gave evidence that, when he was the Garda Commissioner, he contacted the Secretary-General of the department, Brian Purcell, to brief him verbally on the issue of the garda telephone recordings, evidence that was strongly disputed by Mr Purcell.

So here we had two key people with little or no evidence between them, or among their staff, as to when the commissioner first verbally briefed the department on a most critical issue.

Eventually Mr Callinan was fully briefed and wrote a letter to the department, dated March 10, 2014, for the attention of the minister, but that letter was not received by Alan Shatter until after the Garda Commissioner had "retired".

Here again, a most serious issue arises in relation to what we might call the administration of the criminal justice system.

That is, communication issues which have been shown to exist within the garda itself, and between the gardai and the A-G's office, are now seen to extend between the gardai (and the A-G's office) and the department, and from there between that department and the Department of the Taoiseach.

It turned out the existence of Mr Callinan's letter was unknown to the Taoiseach, the Minister for Justice and the Attorney-General throughout the critical period up to the "retirement" of the Garda Commissioner.

At one point, the Fennelly Commission heard extraordinary evidence of a telephone call between senior officials in the Justice Department and the A-G's office which, frankly, could have been taken from the pages of a surreal novel.

In five months, the A-G had not discussed the telephone recording issue with the minister but was none the less preparing to raise the matter at Cabinet.

An A-G official rang to inform the department of this, and had a discussion with a senior department official who assumed, but did not know whether, the minister had received a copy of the Garda Commissioner's letter.

This official told the Fennelly Commission that he had a distinct memory of sitting at his desk for maybe 30 seconds or so, thinking whether he would ring the minister; when eventually he did call, he "straight away realised that the minister didn't know anything about this". It gets worse: this official told the commission that he advised the minister of the essence of the letter; he was "absolutely categoric" that he "explained the entirety of the substance of the letter from the commissioner".

However, Alan Shatter was equally categorical in his evidence that this official did not brief him about the existence of the tapes or the A-G's concerns.

Needless to say, there was no official written record or ­contemporaneous note to assist the Fennelly Commission in this regard.

Now consider what happened when the issue eventually reached the Taoiseach's office and a critical decision taken at a meeting on March 24, 2014.

Enda Kenny initially excluded the Justice Minister, and the Justice Department's Secretary- General from that meeting. When eventually they were included, a decision was taken to dispatch Mr Purcell to the home of the Garda Commissioner, the "catalyst" that led to his "retirement".

Yet there is no minute, note or record of any kind as to what the Secretary-General, Mr Purcell, was told to say to Mr Callinan during this unprecedented event.

As Mr Justice Fennelly has said, from the evidence heard, it is clear that it has been a "matter of public policy" for many years that minutes are no longer kept of discussions at government meetings. "It is no part of the function of this commission to pass judgment on the merits, or otherwise, of this policy," he said, drily.

Such a policy should be of serious concern, however, and gives rise to an obvious question: into which other sections of public administration does this policy extend and, as a result, what other errors, mistakes and all-round incompetencies routinely occur as a result.

Sunday Independent

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