Monday 10 December 2018

Varadkar's judgment still on trial even if Fitzgerald did no wrong

Frances Fitzgerald TD at the Disclosures Tribunal in Dublin Castle Photo Gareth Chaney/Collins
Frances Fitzgerald TD at the Disclosures Tribunal in Dublin Castle Photo Gareth Chaney/Collins
Shane Phelan

Shane Phelan

Frances Fitzgerald may have been the one in the witness box at the Disclosures Tribunal this week, but to a certain extent Taoiseach Leo Varadkar's judgment was also on trial.

Following two days of testimony from Ms Fitzgerald, it is clear Mr Varadkar showed far too much loyalty towards his then Tánaiste last November.

In backing Ms Fitzgerald so strongly, Mr Varadkar brought the nation to the brink of a general election, one the country could ill afford a few weeks out from crucial Brexit negotiations. It is obvious he trusted her version of events, but perhaps he was too trusting.

Evidence this week jarred considerably with Ms Fitzgerald's repeated contention she only became aware of the broad detail of what had been going on at the O'Higgins Commission when it came into the public domain in May 2016.

At the commission, which sat in private in 2015, an attempt was made by then Garda commissioner Nóirín O'Sullivan's legal team to question Garda whistleblower Maurice McCabe's motivation and credibility.

The strategy was based on the belief by some gardaí that Sgt McCabe began making serious allegations against senior officers after he was refused access to the DPP directions in the Ms D case. This was an investigation which cleared Sgt McCabe of sexually assaulting the daughter of a colleague.

Following her evidence, we know Ms Fitzgerald received and read three emails from Department of Justice officials between May and July 2015, giving her at least some knowledge of the strategy followed by Ms O'Sullivan's lawyers.

We also know that on each occasion she did not consult her officials or lift the phone to ask Ms O'Sullivan what was going on.

She repeatedly stressed this would have been an inappropriate interference in an independent commission.

In fairness to Mr Varadkar, when the controversy over what Ms Fitzgerald knew or did not know arose in November, he had to rely on the information given to him.

Ms Fitzgerald, by then Jobs Minister and no longer the Justice Minister, was on a trade mission in the UAE when Mr Varadkar spoke in the Dáil on November 14.

He said she had confirmed to him she had "no hand, act or part" in forming the former commissioner's legal strategy. The Taoiseach also said she did not have any prior knowledge of the legal strategy pursued by the former commissioner's team.

"She found out about it after the fact, but around the time it was in the public domain when everyone else knew about it," he said.

Within days, this assertion was severely undermined.

On November 16, Ms Fitzgerald was told by the Department of Justice it had located an email from assistant secretary Michael Flahive on May 15, 2015.

The email informed her a disagreement had arisen at the commission between the legal teams representing Sgt McCabe and Ms O'Sullivan after counsel for the commissioner raised an allegation of a serious criminal complaint against the whistleblower.

Speaking about the email in the Dáil on November 21, Ms Fitzgerald said: "I can only assume I did read it but I did not remember it when I was speaking to the Taoiseach."

It now transpires that what was said in the email was a somewhat garbled account of what had happened at the commission. Nevertheless it indicated there was a serious issue there. As the controversy raged last November, Ms Fitzgerald clung to a line in Mr Flahive's email that there was no role for her in the matter.

It was a line she repeated several times this week.

Instead of accepting on November 21 that Ms Fitzgerald's race was run, Mr Varadkar doubled down, resisting calls from Fianna Fáil leader Micheál Martin for her resignation.

Looking back, it seems extraordinary Mr Varadkar placed a higher value on retaining Ms Fitzgerald than on the need to retain Fianna Fáil's support for the minority Government.

Ms Fitzgerald's position became increasingly untenable when further emails were released by the department on November 27.

One was an email from then Department of Justice deputy secretary general Ken O'Leary to Ms Fitzgerald, sent on July 4, 2015.

Mr O'Leary told her RTÉ's 'This Week' programme had asked the garda press office if it was Ms O'Sullivan who instructed her legal counsel to take an aggressive stance towards Sgt McCabe at the commission.

Mr O'Leary was not quite accurate. The programme had not used the word "aggressive", but it did ask if counsel for the commissioner had raised questions over Sgt McCabe's motivation.

The email had been another sign to Ms Fitzgerald that while Sgt McCabe was being supported by the commissioner in public, he was being challenged in the privacy of the commission.

Ms Fitzgerald finally resigned from Cabinet on November 28. She told the tribunal she did this "to avoid a general election".

It emerged this week that a further email to her on May 27, 2015, prepared by principal officer Martin Power, alerted her to his belief that the Ms D complaint had been "referred to in a particular context" during the commission.

She confirmed to the tribunal she had read it and she was aware the Ms D case was not in the commission's terms of reference.

Following Ms Fitzgerald's resignation, Mr Varadkar told a party meeting she had done nothing wrong and would be vindicated.

Mr Justice Peter Charleton may well find she did nothing wrong, but vindication is not a word that springs to mind following her evidence.

Irish Independent

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