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Enda Kenny and the Attorney General should resign - political integrity requires nothing less

To defend the Taoiseach’s disingenuousness and the Attorney General’s incompetence is to harm the integrity of politics, writes a former advisor to Alan Shatter.

Tom Cooney

Tom Cooney was a special adviser to the former Minister for Justice Alan Shatter from April 2011 to September 2013. 

He is not a member of any political party and confirmed to TheJournal.ie that he did not consult with Shatter prior to writing this piece, describing the following article as his personal views. 

THE GOVERNMENT’S OWN motion of confidence in the Taoiseach is the most florid symptom of political cynicism since the Haughey era. To defend the Enda Kenny’s disingenuousness and the Attorney General’s incompetence is to harm the integrity of politics.

On 25 March 2014, the Garda Commissioner Martin Callinan resigned in response to a message from Kenny. Did the Taoiseach bring about the commissioner’s resignation? The Taoiseach says no. The interim report of the Fennelly Commission of Inquiry gives us cause to question his claim.

You would think the answer would be obvious. But the Taoiseach kept no record of decisions and the reasons for them. The result was a conflict of evidence among the key witnesses at every turn. Fennelly’s criticism of this practice aligns with common sense.

On 23 and 24 March last year, the Attorney General Máire Whelan informed Kenny that from the 1980s the gardaí had been using telephone recording systems in garda stations. In fact, she knew about this problem since November 2013.

According to her evidence to Fennelly, she said the practice broke the law, involved criminality, and had serious implications for the State and the gardaí. Then she wrote to the commission denying she had accused the gardaí of criminal activity.

The news prompted Kenny, advised by Whelan, to take charge of events.

24/1/2014 Callinan statements on Donohoe murders Martin Callinan Source: Laura Hutton/Photocall Ireland

‘Opaque veil of factual ignorance’

Whelan considered that, at this point, she did not know what the material facts were. Her office had been incorrectly informed by the assistant secretary general in the Garda Division of the Department of Justice that then Justice Minister Alan Shatter had been fully briefed. Yet she decided not to consult with him.

She decided not to contact the two people most able to help her find the facts – the minister and the garda commissioner.

She alleged that Shatter was ‘too close’ to the commissioner. Not only did she lack a spark of evidence for raising the spectre of conspiracy to suppress the facts but also she must have known from her work with the minister that he was not one to compromise his objectivity.

She told Fennelly that she did not seek information from the Garda Commissioner because she did not want to interfere with the relationship between him and the Minister for Justice.

But both the Department of Justice and An Garda Síochána were clients of Whelan’s law office.

If she had been in touch with Callinan he would have told her that on 10 March 2014 he reported the telephone-recording problem in a letter delivered by hand to the Secretary General of the Department of Justice, Brian Purcell.

25/8/2014. Albert Reynolds Funerals Scenes Máire Whelan Source: Laura Hutton/Photocall Ireland

If she had been in touch with Shatter she would have discovered that he had not been given the letter of 10 March by Purcell, and that he had not been fully briefed on the issue.

In fact, he was not told of the existence of the letter until a copy was handed to him during a cabinet meeting on 25 March 2014, some three or so hours after the commissioner’s resignation.

In the result, making matters worse, she allowed the Taoiseach to make his decisions on 23 and 24 March 2014 behind an opaque veil of factual ignorance.

‘Chaos of contradictions’

At this meeting – from which Shatter was excluded – she emphasised again the gravity of the situation to the Taoiseach. Her evidence to Fennelly on this meeting is a chaos of contradictions.

The Taoiseach then called Shatter and his secretary general Purcell to the meeting. Against the advice of Shatter, who counselled against rash action in an information vacuum, he instructed Purcell to take a message to the garda commissioner at his home.

There is a conflict of evidence about what exactly the Taoiseach’s message comprised.

The secretary general of the Taoiseach’s department Martin Fraser, Shatter and Purcell gave evidence that Purcell was to inform Callinan that:

  • the Taoiseach considered the problem to be a matter of the utmost gravity,
  • that the matter would be discussed at Cabinet on the next day,
  • that the Taoiseach would be proposing the appointment of a commission of investigation,
  • that there was a possibility that the Taoiseach might not be able to express confidence in the Commissioner.

26/7/11 New Government Secretary General appointme Martin Fraser

When he was giving evidence to Fennelly, the Taoiseach palmed off the question of whether he instructed Purcell to inform Callinan of the possibility that he might not be able to express confidence in him.

‘Disquieting lack of candour’

In this connection, Kenny displayed a disquieting lack of candour about the message he sent to the Commissioner.

Before the commission, the Taoiseach claimed that he was seeking information from the commissioner. This claim does not withstand the gentlest of testing scrutiny. He did not give Purcell a list of questions he wanted answered by the commissioner. He did not telephone the commissioner or invite him to a meeting to question him.

Significantly, the Taoiseach refused to agree to the commissioner’s proposal that he retire after a period of three months. This peremptory action is utterly at odds with the notion that he was fact-finding.

The Taoiseach’s message to the garda commissioner was not even garbed in sheep’s clothing; it came as the wolf it was.

Callinan – a good man who had put his life in danger for the safety of our community – understood the message to mean that he should consider his position. He decided to retire.

Fennelly accepted the Taoiseach’s assurances that he did not – by sending Purcell to visit Callinan – intend to put pressure on the Commissioner to retire.

28/5/2014. Brian Purcell at Justice Committees Brian Purcell Source: Sam Boal/Photocall Ireland

But it adds:

‘Seen objectively, however, Mr Purcell’s message that the matter of the telephone recording was grave and that the Taoiseach might not, at Cabinet the next day, be able to express confidence in the Commissioner, delivered without previous notice, in person by the Secretary General of the Department of Justice, on behalf of the Taoiseach, at the Commissioner’s home, late at night, was likely to be interpreted as doing just that.

Kenny must have acted knowingly with regard to the commissioner’s resignation. It was not his conscious objective to sack the commissioner.

‘Oblique intention’

But he must have known that his message, saying that he might not be able to express confidence in the commissioner, was coded script for ‘retire now’. He used this formula when looking for the Minister for Justice’s resignation after the Guerin Report was published.

Getting rid of the Commissioner was his oblique intention. Common sense dictates that it was a near certainty that the commissioner would retire once he received the message. Deliberately acting to bring about Callinan’s retirement amounted to sacking by indirection.

It is a postulate of our legal system that a garda commissioner should be accorded due process. The Taoiseach has no free-floating power to ignore the requirements of the Garda Síochána Act 2005.

8/5/2013. Joint Irish Prison Service Reports Alan Shatter Source: Laura Hutton/Photocall Ireland

It is striking that in his statement on Fennelly’s interim report the Taoiseach refers to reasons why he was unhappy with the commissioner. These are exactly the assertions in respect of which the commissioner deserved a fair hearing.

Compelling the commissioner’s retirement creates a dilemma: the Oireachtas enacted a fair procedure in the 2005 Act for dismissing a garda commissioner. But the Taoiseach arbitrarily bypassed that procedure.

He also bypassed Shatter – whose version of the events has been vindicated – to whom the commissioner was statutorily responsible. Fennelly squarely criticises his failure to involve the minister. Indeed the report suggests that had the Taoiseach involved Shatter earlier in the process, it would have developed differently.

Kenny’s creation of a large loophole in a statute that was designed to close a loophole – that on its face had allowed arbitrary dismissal – flies in the face of enacted legislative policy.

The Taoiseach was the drum major in this jaw-dropping parade of highhanded misinformed decisions that disregarded the rule of law.

He and the Attorney General should resign. Political integrity requires nothing less.

Read: After 10 weeks off, TDs started rowing almost immediately today

Read: Here’s what Noirín O’Sullivan had to say about her ex-boss and those black bags

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About the author:

Tom Cooney

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