Friday 18 October 2019

Why we should care about what happened to Shatter

It was clear from the start that the Guerin Report, which ruined the former minister's career, was unfair

Political colleagues: Former justice minister Alan Shatter (right) pictured with Taoiseach Enda Kenny outside Leinster House in March 2011 Photo: Laura Hutton/
Political colleagues: Former justice minister Alan Shatter (right) pictured with Taoiseach Enda Kenny outside Leinster House in March 2011 Photo: Laura Hutton/

Sarah Carey

Something quite bizarre and unexpected happened last week that took me completely by surprise. Forget about Donald Trump: I turned out to be right. That never happens. When Senior Counsel Sean Guerin issued a government report wordily entitled A Review of the Action Taken by An Garda Siochana Pertaining to Certain Allegations Made by Sergeant Maurice McCabe in May 2014, Alan Shatter was forced to resign. Guerin criticised him to the point that Taoiseach Enda Kenny, weary of a stream of apparent scandals emerging from the Department of Justice, informed the besieged minister that the jig was up.

In vain, Shatter appealed to the High Court that the report was unfair. Judge Seamus Noonan not only turned him down, but excoriated him for asking. All seemed lost. But last week, the Court of Appeal said Shatter was right. The Guerin Report was fundamentally unfair.

I'd said so at the time, but sure no one was listening. They were too busy cheering.

The media had got a scalp and the result it wanted. Meanwhile, a senior counsel happily admitted to me they were popping champagne corks in the Law Library. Shatter's efforts to reform the legal profession and judiciary were finished. His successor, Frances Fitzgerald, is not in the business of making powerful enemies.

While the vested interests partied on, I had read Guerin's report and was immediately disturbed by its methodology. Guerin had sat down for 19 hours over several days with Maurice McCabe and listened in detail to his various grievances about policing practices and his efforts to persuade the justice minister to take action.

Thereafter Guerin got dug into paperwork. Going through all the documents he repeatedly complained of being unable to find any rationale for Shatter's approach.

He remarked on " the near total absence in the papers I have seen of any submissions made or advice given to the minister", or "there is no record that I have seen" or "I have had difficulty finding material".

Faced with this information vacuum the obvious choice was to ask the minister why he had done what he'd done - or not done. Bizarrely Guerin didn't do so and instead went ahead and drew conclusions anyway. He said there was "cause for concern as to the adequacy of the investigation of the complaints made by Sergeant McCabe to the Department of Justice".

With these words, Alan Shatter's fine political career came to an end. The Taoiseach's patience ran out and without Kenny's confidence, Shatter resigned as a minister and lost his seat in Dublin South at the following election; which no one could deny was partly related to the condemnation in the report.

But there's a basic principle in law, which every parent, employer, lawyer, trade unionist or anyone in any position that deals with conflict instinctively understands. In the legal profession they call it "audi alteram partem". It means "hear all sides". It is manifestly unfair to listen to one side of the story and draw conclusions without hearing the other.

Furthermore, when the far more detailed investigation by Kevin O'Higgins into what the Department of Justice did or didn't do about Maurice McCabe's allegations was published, it cleared Shatter of any wrong doing and said that he had acted properly at all times. So this isn't a matter of defending Shatter on a technicality: both in process and in substance - he'd done nothing wrong.

But nobody really cares. That's for two reasons. First, Shatter's condescending tones got up people's noses. And secondly, it's all done and dusted. The political circus has moved on and the corpses, broken careers and wounded personalities are lost in the dust.

But we should care. We should care a lot.

We should care that the legal profession got away without reform - which even the IMF remarked upon.

We should care that the hysterics by the media around the McCabe allegations wilfully and consistently refused to distinguish between wild rumour and substantive complaint. We should care that popular and populist Opposition TDs made incredible allegations against Alan Shatter. As Shatter told Barry Egan last year "I was constantly being accused of lying about issues on which it has since been established in a calmer atmosphere, independently by respected, retired members of the judiciary, that I was telling the truth."

We should care that the commentariat genuinely accepts that the superficial rather than the substance counts. Whenever I put it to peers that Shatter was entirely innocent, they just shrug their shoulders and say "yeah, but it was his tone that did him in". So we're clear on that? The people who criticise politicians for only caring about how things look, rather than what they truly are, admit that indeed, perception is reality.

Even the Attorney General Maire Whelan was quoted in the Fennelly Report (there are so many) explaining that Shatter wasn't invited to a key meeting about the Garda Tapes with the Taoiseach because he was "part of the narrative".

It was a phrase I thought quite peculiar and we can't say for sure what she meant by it, but I understood it to mean the narrative that the Garda Siochana was corrupt to a man (or woman) and Shatter was either blind to their faults or actively engaged in a cover up. That was the narrative to which Shatter fell victim. It seems mad now, but those were heady days.

But it all turned out to be rubbish. For instance, remember the bugging scandal? A conglomeration of broadcast and print journalists were absolutely adamant that GSOC (The Garda Siochana Ombudsman Commission) was being bugged.

It all started when The Sunday Times published a story saying that GSOC had been "targeted as part of a sophisticated surveillance operation which used 'government-level technology' to hack into its emails, WiFi and phone systems".

"Government-level technology" clearly implied that the Garda was bugging the institution established to investigate it.

Alan Shatter insisted he had looked into it and the allegations couldn't possibly be true. But "the narrative" just absorbed this into the fairy story of his being a villain. Eventually, the Cooke report concluded that while you can never prove a negative, it was extremely unlikely anyone had accessed one of those clicky things you use for PowerPoint presentations (the "device" supposedly hijacked by nefarious elements) to download anything from a computer's hard-drive. The whole idea was just stupid.

Apart from the damage done to Shatter, which was considerable, what are the consequences of the entire affair?

For me, it means that when I turn on the radio and hear another breathless journalist loudly declare that the latest revelations from another whistleblower mean that the current Commissioner Noirin O'Sullivan will be gone by the end of the week, I just don't believe them. They are the boys who cried wolf.

Maybe it will happen, but seeing is believing. I believe that attitude is shared by many of the public who place very little trust in the media.

I also believe that by consistently accusing all politicians of being corrupt on one level or another, the entire system of democracy is debased,

And what's the result of that? It means that when journalists try to explain to the people that a politician is telling them lies, they just don't believe them and elect them anyway.

At some point, lessons will have to be learned.

Sunday Independent

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