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Government insists it had no 'hand, act or part' in McCabe legal strategy as questions mount

The Taoiseach and Tánaiste have addressed the mounting controversy this afternoon.

Tánaiste Frances Fitzgerald and former Garda Commissioner Noirín O'Sullivan (file).
Tánaiste Frances Fitzgerald and former Garda Commissioner Noirín O'Sullivan (file).
Image: RollingNews.ie

TÁNAISTE AND FORMER Justice Minister Frances Fitzgerald has confirmed she was sent an email about a row at the O’Higgins Commission in May 2015.

The Tánaiste, who gave an interview to RTÉ’s News at One, said the email had been found by the Department of Justice last Thursday as officials sought to answer a number of questions about the probe.

The email concerned a row that had developed between the legal team for the Garda Commissioner and lawyers for garda whistleblower Maurice McCabe. According to the Taoiseach, who has also spoken on the issue in the Dáil today, the email was compiled by a third party and sent to the Minister.

Fitzgerald’s latest comments come amid mounting pressure on the government about when she first learned about the legal strategy to attack the credibility of whistleblower Sergeant Maurice McCabe during the probe.

RTÉ reported last night that the Taoiseach’s own account of when Fitzgerald first learned about the strategy, given to the Dáil last week, was now being corrected by the Department of Justice.

‘Motivation and credibility’

Documents uncovered by RTÉ’s Prime Time back in 2016 showed that Commissioner Nóirín O’Sullivan’s senior legal counsel Colm Smyth SC told Justice Kevin O’Higgins that he had “instructions from the commissioner” to “challenge the integrity… of Sergeant McCabe”.

On the day O’Sullivan was to give evidence, Smyth clarified his remarks and said that his instructions were to “challenge the motivation and credibility of Sergeant McCabe”.

Taoiseach Leo Varadkar told the Dáil last week that Fitzgerald was not aware of this until “after the fact, around the time it entered the public domain”.

A spokesperson for the Department of Justice told RTÉ yesterday that while the department had no prior knowledge of the legal strategy it was…

…made aware in general terms in May 2015 of an issue having been raised by Counsel for Sergeant McCabe following the exchanges at the commission hearings and the then-minister was informed at that time in the context of it being a matter for the gardaí.

The department added:

As the Taoiseach has stated, the then minister did not become aware of the full details of the issue until the matter became public. The same is true in respect of the department’s knowledge.

Addressing the issue in Leaders’ Questions this afternoon, the Taoiseach said the email to Fitzgerald was brought to his attention at 11.30pm last night.

The Tánaiste, in her radio interview, had confirmed the information in the mail concerned a disagreement between two counsels at the commission.

Asked what the row had been about, Fitzgerald said it had concerned an allegation that there had been “a serious criminal complaint against Maurice McCabe – which he had always denied – [that] had not been properly investigated by the Garda Siochána”.

Asked whether she had asked for more information at the time, she said it wasn’t for her to get into the detail. The email also stated, she said, that she could not legally get involved as the matter was part of a Commission of Investigation.

Fitzgerald, who is now the Minister for Business and Enterprise, did not say during her News at One interview whether she remembered reading the email before it was brought to her attention in recent days.

‘No hand, act or part’

Varadkar repeated a number of times during Leaders’ Questions today that neither the former Minister for Justice nor the Department of Justice had any “hand, act or part” in the legal strategy of the Garda Commissioner.

He also insisted she only found out the full detail about it “after the fact”.

leo Taoiseach Leo Varadkar at Leaders' Questions today. Source: Oireachtas TV

Fianna Fáil leader Micheál Martin, speaking at the start of Leaders’ Questions, said he had taken a phonecall from Maurice McCabe shortly before entering the chamber at 2pm and that McCabe was adamant that the issue Fitzgerald was alerted about in the email was not discussed at the O’Higgins Commission.

“He is taking very serious issue with the remarks of the Tánaiste on the News at One today and, it is my understanding, will be issuing a statement,” Martin said.

The House will appreciate I have only taken the call. I am not in a position to adjudicate on this or not, but it again raises more questions than answers.

The Taoiseach was asked several times whether he would publish the email in question but told the chamber he would have to seek legal advice.

The Disclosures Tribunal 

McCabe was vindicated by the O’Higgins Commission last year on issues he’d raised about garda misconduct. The report found he had raised the issues out of legitimate and genuine concern.

The Disclosures Tribunal was set up in February of this year to investigate (amongst other things) claims that members of the gardaí sought to discredit Sergeant McCabe because of complaints he made about members of the force.

The tribunal, which is still under way, was also tasked with looking into the creation of a Tusla file which contained false allegations of sexual abuse against McCabe and whether the allegation or file was created by members of the force.

It is also investigating whether the allegations were used by then-Garda Commissioner Noirín O’Sullivan to discredit McCabe and whether gardaí tried to entrap the whistleblower.

Separately, Maurice McCabe and his family initiated legal proceedings against the HSE and Tusla to seek damages over the false sexual abuse allegations made against him in March of this year.

Labour TD Alan Kelly, who has been asking a series of detailed parliamentary questions on the issue in recent weeks and who claims to have been “shut down” by the government several times, said this morning he believed the Tánaiste’s position was “precarious” in the wake of the recent revelations.

Read: ‘How in the name of God did this happen?’: Government under  fresh pressure over McCabe timeline >

Read: ‘What are they hiding from?’: Pressure on government on what it knew about McCabe smear plans >

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