Colum Kenny: Dail infighting takes eye off more serious concerns
Some of the ways of doing garda business that worry the whistleblowers go to the heart of Irish society.
At the heart of the penalty points row is a serious issue about policing. For the garda whistleblowers involved, this has never been about local gardai exercising a bit of sensible discretion at the side of the road, and certainly not about seeing which Dail deputy is the biggest hypocrite.
So what did drive two middle-aged, experienced gardai with young families to try quietly for months to get their complaints taken more seriously before they went elsewhere? It was deep concern about a range of discipline and management issues.
Last week, the Garda Ombudsman Commission also criticised some responses by the gardai to its separate investigation of other complaints. The whistleblowers, long-serving gardai themselves, know that most gardai do a good job and want to protect the reputation of the force.
But if the internal garda report into some of their complaints was ever likely to reassure the public, then the arrest of Clare Daly and the political ambushing of Mick Wallace have raised suspicions that there is something to hide.
Any independent review of garda discipline and management would need to be more transparent than the minister's inquiry and look at a broader range of issues.
It should, for example, interview both whistleblowers. The internal enquiry team did not. Their complaints go beyond the penalty point scandal to other issues. It might ask, for example, why at least one whistleblower is dissatisfied with the response of Mr Oliver Connolly, the official "Confidential Recipient" who receives complaints from garda whistleblowers. Did Connolly have to depend solely on the gardai themselves? What did he tell either whistleblower? And what pressures have people, outside the gardai, put on any whistleblower to drop or withdraw complaints?
When he appointed Connolly in 2011, Mr Shatter said: "It is in everyone's interests that An Garda Siochana operates to the highest possible standards and that those who are aware of corruption or malpractice within the organisation can report it knowing they will be protected." He promised even stronger whistleblower protection.
Connolly, a lawyer, had donated €1,000 to Shatter during the 2007 election campaign. RTE's reporting of this fact led to the minister accusing its crime correspondent of "tabloid sensationalism", for which he later apologised.
And Shatter last week promised another apology, this time "if Deputy Wallace feels that I did him some personal wrong". His offer was rejected as inadequate.
Just three years ago, on February 18, 2010, Alan Shatter TD demanded the resignation of Minister for Defence Willie O'Dea for using confidential information given to O'Dea by a garda.
Although asked more than six times by the Ceann Comhairle to sit down, Shatter insisted on making his points in the Dail.
Then Fine Gael opposition spokesperson on justice, Shatter referred to "the statement made yesterday evening in this House by the Minister for Defence, Deputy Willie O'Dea, in which he admitted confidential information furnished to him as Minister for Defence by members of the Garda Siochana had been improperly used for his own electoral gain".
Shatter insisted in 2010 that "this is an issue of enormous seriousness" and reiterated that O'Dea had made a statement "based on confidential information given to him as a minister".
Refusing again to sit down, he added: "This man has responsibility for the security of the state. This is outrageous and unacceptable and he should no longer be a member of the Cabinet."
And in a final flourish, Shatter proclaimed, "No member of the Garda Siochana nor member of the Defence Forces can ensure that if he or she gives the minister confidential information, he will not run around the streets of Limerick whispering it into ears of journalists for his own personal benefit. It is unacceptable."
O'Dea appears to have received his information from a lower ranking garda, and the information was untrue.
Mick Wallace has confirmed that there was some factual basis for Minister Shatter's allegation on Prime Time. The Wexford deputy had a mobile phone in his hand while driving.
Simply as a solicitor, Alan Shatter should have paused before repeating what he had been told. Like Willie O'Dea, and in the absence of a conviction or fine, he had only hearsay evidence from a garda for what he alleged. That information might have been wrong.
In any event, truth is no defence to an action for breach of privacy, unless the publication of that truth can be justified in a court by reference to major issues of public welfare.
In cases where the security of the State is directly involved, or where an individual is suspected of serious criminal intent or activity relating to a matter of national importance, one may argue that it is appropriate for senior gardai to brief the government formally and confidentially.
The stopping of Mick Wallace by a garda was not such a case.
So have other deputies been silenced by the use of information obtained in similar circumstances, where a road traffic or more serious criminal offence was overlooked and they now fear that this will be disclosed to make them look bad?
In the Dail on Tuesday, Shatter denied that he was prepared to use confidential garda information to damage a political opponent and claimed that "nothing could be further from the truth".
He claimed that his statement on Prime Time "was both necessary and in the public interest ... I believed that there was an extraordinary inconsistency between what Deputy Wallace had to say and what actually occurred in his case".
I sought from the minister last week information about other deputies and senators in order to allow me to guide readers of the Sunday Independent about what other members of the Oireachtas have said or have not said in respect of the penalty points and discretion issues.
His department's reply suggests that just two opposition deputies were singled out for the exchange of information between the gardai and the minister.
His office told me that: "Other than the cases of Deputy Mick Wallace and Deputy Luke 'Ming' Flanagan which were referred to in Tuesday night's Dail debate, the Department or Minister have no information on penalty points, the setting aside of penalty points, or the exercise of discretion by An Garda Siochana in relation to members of the Oireachtas."
Some of the ways of doing garda business that worry the whistleblowers go to the heart of Irish society, and can have a corrupting effect on public life in areas such as policing, financial regulation and local government.
Perhaps anticipating a possible legal action by Mick Wallace under data protection legislation, or for a breach of any citizen's constitutional right to privacy, the minister in the Dail upped the ante from a charge of hypocrisy to something that sounded like subversion.
He claimed that unnamed opposition deputies had "continued to denigrate An Garda Siochana and sought to undermine public confidence in and damage the reputation of the force".
It was an extremely serious slur that appears to assume that the internal garda report on penalty points is the last word on the matter, and that insistence on the highest possible standards of policing somehow weakens rather than strengthens the reputation of the gardai.