Monday 21 May 2018

A curious lack of curiosity

The former Tanaiste did not ask questions when alerted to issues at the O'Higgins Commission, writes Shane Phelan

HANDS OFF: Former Minister for Justice Frances Fitzgerald and former Garda Commissioner Noirin O’Sullivan. Photo: Steve Humphreys
HANDS OFF: Former Minister for Justice Frances Fitzgerald and former Garda Commissioner Noirin O’Sullivan. Photo: Steve Humphreys
Shane Phelan

Shane Phelan

Some striking similarities between former Tanaiste Frances Fitzgerald and former Garda Commissioner Noirin O'Sullivan came to the fore at the Disclosures Tribunal last week.

To their credit, both were heavily involved in seeking to resolve workplace issues that whistleblower Maurice McCabe was experiencing during 2014 and early 2015.

Ms O'Sullivan appointed a chief superintendent and her civilian head of human resources to meet directly with Sergeant McCabe.

An independent workplace relations expert, Dr Gerry McMahon, was engaged to conduct a series of seminars, briefing Garda personnel on policies on dignity at work.

The tribunal also heard that Ms O'Sullivan sought to get industrial relations troubleshooter Kieran Mulvey involved.

It is undoubted that some of these actions occurred following inquiries by Ms Fitzgerald. Even though it would have been unusual for a Justice Minister to have a formal meeting with a lower-ranking garda, she had met with Sgt McCabe and discussed problems he was having.

This was arranged after Sgt McCabe had emailed her at the Department of Justice.

The tribunal was given a flavour of the emails Sgt McCabe sent for the minister's attention.

In one, on February 19, 2015, Sgt McCabe said: "Still being harassed, victimised, set upon and bullied, yet no one has any solutions."

In another, he conveyed in clear terms how making a protected disclosure had been damaging for him.

Shortly before the O'Higgins Commission began sitting in private in May 2015, things seemed to have improved.

"It's great being able to say for the first time in years that I'm happy going to work," he told Ms Fitzgerald in an email.

"I wish to acknowledge your personal input into sorting out my work environment. Thank you very much for all of your help. It's very much appreciated by myself and [my wife] Lorraine."

Given their efforts up to this point, it is surprising how detached both women were while Sgt McCabe was being maligned at the O'Higgins Commission.

Ms O'Sullivan gave her legal team instructions to challenge Sgt McCabe's motivation and credibility at the commission, which was investigating concerns he had raised about malpractice in the Cavan/Monaghan Garda division.

Following consultations with senior officers, which Ms O'Sullivan was not involved, in the legal team formed the belief that a series of serious and ultimately unfounded complaints against senior officers were triggered by the refusal to give Sgt McCabe access to the full DPP's directions in the Ms D case.

This was an investigation in 2006 and 2007 into an allegation Sgt McCabe had sexually assaulted the daughter of a colleague years earlier.

The DPP determined no crime had occurred.

Ms O'Sullivan had no direct knowledge of these events, but gave her approval to the legal strategy after being advised by her barristers.

Thereafter, she was remarkably hands off. She did not know, for examine, that Sgt McCabe's integrity was also challenged, in error, by her lead counsel.

She also says she was at a loss to understand why Sgt McCabe resigned as sergeant in charge of the traffic unit in Mullingar and felt under threat from her after a letter from her legal team to the commission falsely claimed he had blackmailed a senior colleague in a bid to get the DPP directions.

Ms O'Sullivan never sought a copy of this letter at the time, saying it was part of the proceedings before the commission.

Sgt McCabe's counsel Michael McDowell SC said the attitude she took amounted to "an extraordinary lack of curiosity".

Following her evidence to the tribunal last week, Ms Fitzgerald could also be accused of a similar lack of curiosity when it came to matters before the commission. When she was forced to resign from the Cabinet last November, she maintained she only became aware of the broad details dealt with in the commission when they came into the public domain in May 2016.

This assertion was somewhat undermined last week by her confirmation she had received and read emails from three different Department of Justice officials between May and July 2015 which alerted her to a certain degree that there was an issue with the legal strategy pursued by Ms O'Sullivan's legal team.

It would have been clear from the emails that while Sgt McCabe was very much being supported publicly by the commissioner, something else entirely was going on behind the closed doors of the commission.

Nevertheless, on each occasion Ms Fitzgerald did not consult with her officials or her advisors, even when they were copied on the correspondence. They did not seek to discuss it with her either.

Ms Fitzgerald also did not contact Ms O'Sullivan to ask what was going on.

It was only in May 2016, following the publication of the O'Higgins report and newspaper articles based on leaked transcripts, that she sought and received an assurance from Ms O'Sullivan.

At the tribunal last week Ms Fitzgerald repeatedly said the reason she did not get involved was because it would have been inappropriate.

"It was very clear from the senior members in the Department of Justice and from myself, as minister and advisers, everyone, that this was a self-contained commission of investigation," she said.

She said her understanding was "it would probably have been certainly inappropriate, if not illegal" to engage in political interference.

"I would be answering different questions [now] if I had done anything that seemed to interfere with the legal strategy of any party there," she said.

Using this logic, Ms Fitzgerald was damned if she intervened and damned if she didn't.

Her dilemma would have been very much a private matter had the emails never seen the light of day.

It is one of the more curious aspects of this whole affair that the emails were not among documentation originally disclosed to the tribunal by the department.

Two of them only came to light following parliamentary questions by Labour TD Alan Kelly, while a third was publicly disclosed at the tribunal for the first time last week.

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