Saturday 24 August 2019

Under-fire Tanaiste could never have predicted the fallout when she answered that late-night mobile phone call

Maeve Sheehan, Philip Ryan and Cormac McQuinn

Tánaiste and Minister for Enterprise and Innovation Frances Fitzgerald Picture by Fergal Phillips
Tánaiste and Minister for Enterprise and Innovation Frances Fitzgerald Picture by Fergal Phillips

Maeve Sheehan, Philip Ryan and Cormac McQuinn

The treatment of the Garda whistleblower, Maurice McCabe, has a way of tripping up important people, often when they least expect it.

It caught up with Frances Fitzgerald, the Tanaiste and Minister for Business and Enterprise, last Monday night. It was late and she was tired when her mobile phone rang. She was in transit, making her way through airports en route to Dublin from trade missions in the Middle East and the US. It was the Taoiseach's office, demanding to find out what she knew about an email that had surfaced in the Department of Justice, flagging up the aggressive legal strategy Garda management planned to deploy on Maurice McCabe at private hearings of a Commission of Investigation.

Frances Fitzgerald had only been reminded of the email herself days earlier.

In May 2015, when she was Minister for Justice, an email landed in her inbox at 17.04 one evening. By then, Sergeant Maurice McCabe's whistleblowing about Garda malpractice had helped topple the former Garda Commissioner Martin Callinan, who called him "disgusting", and Alan Shatter, the Minister for Justice, had been sucked into the vortex of Garda controversies. When she succeeded him, Frances Fitzgerald had placed herself firmly on the side of McCabe.

In a nutshell, the email was from a senior official in the Department of Justice to a second senior civil servant, purportedly putting the Minister on notice that the Garda Commissioner, then Noirin O'Sullivan, had authorised her legal team to raise an issue relating to a serious criminal complaint against McCabe at private hearings of the O'Higgins Commission. This was "presumably because it was potentially relevant to motivation", the email said. The information had come to the Attorney General's office and no action was required from the Minister. While publicly championing Maurice McCabe, Garda management were privately attempting to discredit him.

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The email should have raised red flags. Particularly as Frances Fitzgerald had publicly supported Maurice McCabe. But what she thought of this aggressive legal strategy behind the closed doors of the O'Higgins Commission remains unclear.

The veteran Fine Gael politician could not remember reading the email, she said last week.

But officials in the Department of Justice believed she had. "The email was passed to the Tanaiste who is recorded as having noted its contents. There was no oral discussion or briefing with her about it," a Department statement said yesterday. According to the Department of Justice, the term "noted" means that it was seen. However, her office would prevent her from interfering with Garda's legal strategy.

Time marched on. Scandals surrounding the treatment of Maurice McCabe escalated. The news about McCabe being the subject of an attempted take-down by Garda management at a Commission of Investigation eventually became public and was roundly condemned. Shocking revelations of false allegations against him precipitated a full-scale Tribunal of Inquiry.

Not a word surfaced about this email alerting the Department of Justice to the Garda's much commented-on legal strategy against McCabe. And there it lay, buried away somewhere in the Department.

Until last month, when the ambitious Labour deputy, Alan Kelly, started tabling awkward parliamentary questions about what the Department of Justice knew about McCabe. Kelly had become familiar with the dysfunction in the force as vice-chairman of the Public Accounts Committee, from Templemore, to Garda management at each others' throats, fake breath-tests and a Garda Commissioner who eventually stepped down, claiming the scrutiny was making it impossible to do her job.

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From this vantage point, Kelly had been sending in questions to know what the Department of Justice knew about Garda management's anti-McCabe strategy, and the special unit that had been set up within An Garda Siochana to deal with the Disclosures Tribunal.

On November 9, sparked by the latest batch of Kelly's parliamentary questions, the apparently long forgotten email was discovered by officials in the Department. The email clearly showed that the Department did know about the Garda's planned strategy. The Department's secretary general, Noel Waters, referred it for legal advice, according to a Department statement. The Minister, Charlie Flanagan, was not told at that stage even though Kelly's parliamentary questions were piling up. Flanagan was informed about the email on Monday, November 13, when Noel Waters rang him to let him know he was retiring.

According to a statement yesterday on behalf of Flanagan, Waters told him that "an email had been found in the Department that referred to the O'Higgins Commission and Sgt McCabe". When Flanagan replied that the document should be passed to Tribunal, Waters told him "a legal view was being sought but he anticipated that the email would be furnished to the Tribunal (which it subsequently was)". Beyond that, according to the Department, Flanagan was "unaware" of the "specific content" of the email.

However, Flanagan was aware of the rumours in political circles, fuelled by Kelly's questions, about what the Department of Justice knew about McCabe. Fianna Fail and the Labour Party threw their weight behind Kelly.

On November 14, the day after Flanagan was told about an email that "referred to the O'Higgins Commission and McCabe", Micheal Martin, the Fianna Fail leader, questioned the Taoiseach on this very subject at Leaders Questions in the Dail. Brendan Howlin, the Labour Party leader, followed suit.

Each time, Flanagan sat in the Dail chamber and listened to the Taoiseach deny that the Department of Justice had advance knowledge of the Garda's legal strategy against McCabe.

Varadkar had spoken to both Charlie Flanagan and Frances Fitzgerald and "the information I have, which I believe, is that the Tanaiste had no hand, act or part in determining the legal strategy of the former Commissioner and had no prior knowledge of the legal strategy pursued by the former Commissioner. I am also informed by the Department of Justice and Equality that it was told about the approach taken by the Commissioner's senior counsel after the cross-examination had already taken place. As the Department was informed after the fact, it was certainly not in a position to express any reservations about the legal strategy".

The only intervention Flanagan made was to assert in a bizarre point of order, on the coat-tails of the Taoiseach's statement, to "desist from engaging in a smear campaign against me both personally and professionally". Alan Kelly had not uttered a word. "Deputy Kelly has not said anything in my hearing," said the Ceann Comhairle.

On Thursday, November 16, although abroad, Frances Fitzgerald had been following these events. She rang the Department of Justice to check in. She later said that was the first she heard about the email. As she was abroad until after the weekend, she planned to tell the Taoiseach before the Cabinet meeting of last Tuesday morning.

That's where things stood on Monday night, until events took a different turn.

RTE reporter Katie Hannon had news of the email confirmed to her by the Department of Justice. The Taoiseach, Leo Varadkar, was at home in west Dublin when his officials broke the news that RTE was looking for a response to a Department of Justice statement that confirmed what the Taoiseach had been denying all week.

Varadkar didn't get a copy of the email until 11.30pm that night and calls to Fitzgerald and Flanagan produced no further enlightenment. Fitzgerald travelled back from her foreign trade mission to what has proved to be biggest crisis of her political career,and for the Government. Her flight landed at Tuesday morning at 5am. She got two hours' rest in her house before rushing to a pre-Cabinet crisis meeting with Flanagan and the Taoiseach.

The story was a game-changer for two reasons; it meant the Taoiseach had misinformed the Dail and confirmed the allegations he had been denying, that the Department of Justice had advance knowledge of the Garda legal strategy against Maurice McCabe, even though the then Minister, Frances Fitzgerald, she claims that she has no memory of reading it.

To compound the damage, key facts were wrong, such as Fitzgerald's dates. Maurice McCabe alerted the Taoiseach that the email itself was inaccurate. There was growing confusion over what the then silent Minister for Justice knew about the debacle. Varadkar backed Frances Fitzgerald and took aim at the Department of Justice for giving him misleading information - and not for the first time. She had done nothing wrong; the email required no action and she took none, and her role prohibited her from the interfering with An Garda Siochana's legal strategy anyhow.

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But there was too much confusion, too many unanswered questions. Sinn Fein's announcement that it would table a motion of no confidence in Fitzgerald was expected. Even still, few in Government circles saw this coming: "It didn't feel like a crisis on Tuesday or Wednesday night. Maybe we were complacent, but I don't think it could have been envisaged where this was going."

Whatever Sinn Fein did, Fianna Fail's plans were what counted. The party's Confidence and Supply arrangement that propped up the Government had been on shaky ground. Was it worth threatening to pull the house down over Fitzgerald's supposed incompetence?

Micheal Martin clearly had pause for thought. At 2.30pm on Wednesday, he picked up the phone to Leo Varadkar. He wanted to tell him quietly that he had no confidence in Fitzgerald, according to a source. What was Varadkar going to do about it? Varadkar promised to call him back. He never did. It was all everyone wanted to talk about at the Fianna Fail parliamentary party meeting that night. But Martin shut down debate.

He needed time and space to think, he told people. The next afternoon, travelling back to Dublin from engagements in Cork, he instructed Jim O'Callaghan, the party's front bench spokesperson, to break the news of their own motion of no confidence on the Six One news. Martin then rang Varadkar to tell him he was "going public", said the source.

O'Callaghan's announcement - in the words of one TD - "pulled the pin out of the grenade".

The last three days have been a game of who blinks first. Leo Varadkar wants Micheal Martin to withdraw his motion. Martin is not budging unless Fitzgerald stands down. Both men talked on Friday with no success. Backroom people are talking, and if a subtle shift is detected on either side , both men will talk again. Varadkar stole the march, declaring on the Six One news last Friday that he will back Fitzgerald all the way, just as he backed McCabe when it was unpopular to do so, and calling on Martin to "calm down".

"A lot of people are surprised that Fianna Fail are taking such a bullish approach. Is this issue really worth a collapse of government?" asked one source close to government.

One backbench Fine Gael TD claimed Fianna Fail just wanted to "get their hands on the tiller"; "The economy is well on its way to recovery… It's very easy to govern when you've balanced the books", he said.

Fianna Fail sees it differently. One senior Fianna Fail TD said: "We don't want to precipitate an election but there comes a point when you have to stand up and say what happened here is wrong. In a normal government, a minister would be gone when they show that level of incompetence."

If this breathless political drama subsides, troubling issues remain. The Garda strategy to question Maurice McCabe's motivation was abandoned when he produced a secret tape recording that disproved the Garda line. But questions remain about what the Department knew.

McCabe has made known his horror at the misinformation being peddled within the Department of Justice in the email. The Department of Justice must answer questions on its mishandling of the email, exposing the Taoiseach to accusation and suspicion for misinforming the Dail.

Mr Justice Peter Charleton, who chairs the Disclosures Tribunal, took the unusual move of issuing a statement last Friday to say he will be examining the issues around the Garda's legal strategy in the New Year.

Last Friday Social Protection minister Regina Doherty implored: "Nobody wants an election. Can we come back from the brink please? Of whatever this particular row is over and I'm still scratching my head trying to figure out what the charge is against Frances Fitzgerald."

According to one of her party colleagues, her sentiment seems to reflect the broader mood of an electorate preparing for Christmas.

This weekend, politicians left the histrionic cocoon of Leinster House to fan out in their constituencies across the country, to rally the troops for a general election. One veteran politician surveyed the snowy landscape. "How are we expected to canvass in that?" he asked.

"Letters have gone out to activists and we are call meetings next week. But how do we get election teams together between now and Christmas?

"No one wants it, that's for sure."

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