TÁNAISTE AND FORMER Justice Minister Frances Fitzgerald has sent TDs a copy of an email about a row at the O’Higgins Commission.
The correspondence has been at the centre of a controversy surrounding when Fitzgerald knew about the strategy to attack Garda whistleblower Sergeant Maurice McCabe’s credibility at the commission.
Speaking in the Dáil tonight, Fitzgerald said the Department of Justice informed her last Thursday that an email had been located that was sent to her about the subject in May 2015. She said she did not remember the email when it was brought up last week.
The email concerned a row that had developed between the legal team for the then Garda Commissioner Nóirín O’Sullivan and lawyers for McCabe.
The email mentions an allegation that “a serious criminal complaint against Maurice McCabe – which he had always denied – had not been properly investigated by the Garda Siochána”.
Fitzgerald told the Dáil Taoiseach Leo Varadkar had spoken to McCabe about the situation this evening. She said she needed to be “circumspect when commenting on matters before a tribunal” and reiterated she had “no hand, act or part” in the legal strategy of the Garda Commissioner – echoing comments made by Varadkar in the Dáil earlier.
‘Disgusting attempt to blacken McCabe’s name’
Opposition TDs have been critical of Fitzgerald’s comments, raising questions about the timeline of events.
Solidarity–PBP TD Paul Murphy described the strategy as a “disgusting attempt to blacken the name of Maurice McCabe”. ”How could the minister receive such an email and read it and forget that she read it?,” he asked.
Fitzgerald said she likely did not remember the email as it said she did not need to take action. It stated: “Neither the Attorney General nor the Minister has a function relating to the evidence a party to a Commission of Investigation may adduce.”
The Tánaiste said it would have been “absolutely inappropriate” for her to influence a witness’ legal strategy.
At today’s post-Cabinet briefing, a spokesperson said the government was seeking legal advice as to whether it should publish the email in question.
The spokesperson added that Varadkar “absolutely” has full confidence in Fitzgerald. 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 McCabe.
‘Challenging McCabe’s integrity’
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.
Documents uncovered by RTÉ’s Prime Time back in 2016 showed that 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”.
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”. During Leaders’ Questions today, Varadkar insisted that Fitzgerald only found out the full detail about it “after the fact”.
Fianna Fáil leader Micheál Martin said he had taken a phone call from 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.
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 O’Sullivan to discredit McCabe and whether gardaí tried to entrap the whistleblower.
Separately, McCabe and his family initiated legal proceedings against the HSE and Tusla earlier this year to seek damages over the false sexual abuse allegations made against him.
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.
With reporting by Daragh Brophy