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No tears shed for Shatter, but Guerin procedures need to be questioned

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ALAN SHATTER: Cast in the role of villain by media and political opinion-formers

ALAN SHATTER: Cast in the role of villain by media and political opinion-formers

ALAN SHATTER: Cast in the role of villain by media and political opinion-formers

There's nothing worse than ending up on the wrong side of the Single Narrative; for this is the virtually unassailable mechanism by which most public affairs are presented.

A story simple enough for children to understand is constructed by a tiny band of media and political opinion-formers. Once it has taken hold, almost nothing will break the narrative chain. You can have inquiries until the cows come home but invariably the media's Single Narrative will prevail.

A key factor in establishing narratives is personality, and the identification of villains and heroes. Labels can change depending on one's current place in the hierarchy of public enemies. In the case of Martin Callinan, he, Callinan, was originally assigned the role of villain; but found himself recast as a victim to Enda Kenny's villainous Taoiseach.

It'll be interesting to see if the Fennelly Report will alter this narrative. Be warned now: when that report is issued, the only way you'll ever know what it contains is if you read it yourself. On those rare occasions when I get time to read a report, I am usually shocked by the divergence between its contents and what politicians and commentators claim it contains.

For precedent, look at what happened with the Guerin Report. It was established to examine the allegations made by Maurice McCabe into "grave deficiencies" in garda practices in Co Cavan. It was heavily critical of Alan Shatter and resulted in his resignation. He's attempting to have it overturned, and last week announced he's going to appeal a High Court ruling by Judge Seamus Noonan. Noonan didn't simply turn down Shatter's case, but lambasted the former Justice Minister.

Shatter gets zero sympathy in the press and political worlds because, ultimately, he has an abrasive personality. Despite his widely acknowledged record on law reform, he has a superior air that gets up people's noses. For example, when he rubbished the notion that GSOC had been bugged, he enraged the conspiracy theorists in the media. The Cooke Report proved the allegations were a fairy story and the bugging bubble was burst. But the fact that Shatter turned out to be right was no help to him once he had been firmly cast as a villain by the aforementioned tiny band of media and political opinion-formers.

Sean Guerin's report was heavily critical of Shatter for not doing enough about Maurice McCabe's allegations. Is Guerin right? If so, did Shatter deserve to go? I want to put those basic questions to one side and to instead ask what I believe to be a more pressing question: was Guerin's report fair to Shatter?

I don't see how Guerin's report can be fair because there is a flaw in his process so fundamental that Judge Seamus Noonan's ruling upholding the report seems equally unfair.

What Guerin did was sit down with Maurice McCabe in four separate meetings, for a total of 19 hours, during which McCabe took him through his various files and correspondence. Then Guerin requested notes and documents from other parties, like An Garda Siochana, GSOC and the Department of Justice. Almost everyone complied with the requests, except for GSOC - but that problem is for another day.

But at no time - none - did he speak to anyone else. How on earth can any report be fair if you only speak to one guy - the one making all the allegations? The terms of reference specifically licensed Guerin to interview any person he felt necessary to the review. What employment appeals tribunal, court case, disciplinary hearing or any inquiry of any sort speaks to one person and one alone?

Instead Guerin, after his interviews with McCabe, relied entirely on written records. It meant that if he couldn't find an answer to a question in the paperwork, he drew conclusions anyway.

When it came to the central question: should Shatter, as minister, have set up an independent inquiry to investigate McCabe's allegations, Guerin concluded that there was "cause for concern as to the adequacy of the investigation of the complaints made by Sergeant McCabe to the Department of Justice". This conclusion was largely based on Guerin being unable to find in the paperwork any rationale for Shatter's approach. He repeatedly refers to the shortcomings of the paperwork, referring for example to "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". If he couldn't find the advice given or if he wondered why Shatter did what he did, why didn't he just pick up the phone and ask him?

Well, it's only a minister, his detractors might say. So what if he lost his job? He should've done something about McCabe earlier so he got what's coming. But there is a deeply worrying aspect to Judge Noonan's ruling. In it, the Guerin Report is characterised, not as an 'Independent Review' as outlined in the terms of reference, but instead a "legal opinion" provided to the Government and therefore not something that can be challenged in the courts. It's just an opinion and not subject to strict procedural requirements.

Consider the consequences of that ruling standing. It would mean that in the future, any government could retain any legal counsel to provide a "legal opinion" that results in conclusions being drawn about someone's actions as a result of which they lose their job - and reputation. Strict procedural requirements need not apply. This isn't just unfair, it's actually extremely dangerous. No one cares right now because in the Single Narrative, Shatter is a bad guy.

Sunday Independent