Attorney General did not brief Cabinet on taping as information was ‘tentative’

Attorney General Máire Whelan did not brief the Cabinet last November on the Garda practice of recording telephone calls because the information supplied to her was "tentative", senior Government sources have said.

Yesterday, Minister for Justice Alan Shatter confirmed the Attorney General first learned of the practice last November when the then Garda commissioner Martin Callinan briefed her office about the practice.

In his statement to the Dáil, Mr Shatter said: “While [Ms Whelan] was made aware of the existence of tapes, and the possible existence of other tapes, I am advised she had no knowledge at that time of the circumstances surrounding the making of tapes, the legal background to their being made, the contents of such tapes, or the number of such tapes.”

Minister for Public Expenditure Brendan Howlin, when asked on RTÉ's Six One News last night why it took almost six months before the Attorney General briefed the Cabinet or Taoiseach about the matter, said Ms Whelan was certainly unaware of the scale and implications when she was initially briefed.

There was "no red flag flashing" last November, said Mr Howlin, who indicated the main advice being sought was the appropriateness of the practice. The practice was discontinued at the end of November 2013.

Potential implications

A Government source said the information supplied to the Attorney General at the time was “tentative” and also referred to it being part of an information-gathering phase that concluded only last week.

Another source said the extent of the legal ramifications was not immediately evident last November and it was only when it came to the more recent matter of a discovery order in civil proceedings (the action being taken by Ian Bailey against the State and the Garda Síochána) that the widespread nature of the practice and the serious potential implications became issues.

There were persistent calls from the Opposition yesterday for the Government to explain why the Attorney General had not briefed the Cabinet earlier.

In a letter to the Department of Justice on March 10th, Mr Callinan said he had consulted the Attorney General’s office on November 11th, 2013, and established a working group to report to him on the issue. The working group did not involve the Attorney General’s office.

Ms Whelan’s office did not make any public comment yesterday. In the Dáil, however, Mr Shatter said it was his understanding that on the day the letter from the commissioner was received last November, there was a consultation held with the senior counsel representing the State in the civil case to discuss the issue.

On the day after receipt of the letter of March 10th in his department, Mr Shatter said, there was a follow-up meeting between the Garda commissioner, officials in the Department of Justice and the Office of the Attorney General.

He continued: “I am advised that the discussion covered the ongoing legal consultation in regard to the civil proceedings. I also understand that the matters covered in the letter of March 10th were being considered by my departmental officials, in the context of the ongoing legal consultation in regard to the specific case in question.”

Mr Shatter said he was not briefed on the recordings issue until about 6pm last Monday. He added he was shown the March 10th letter from Mr Callinan on Tuesday at 12.40pm.

'Considerable concern'

Separately, Taoiseach Enda Kenny told the Dáil he was informed of the issue for the first time last Sunday.

Mr Kenny said he called Ms Whelan that morning and was told she would be in the department, as she normally was on Sundays, to prepare for Tuesday’s Cabinet meeting. The offices of the Taoiseach and Attorney General are both located in Government Buildings on Merrion Street in Dublin.

“She indicated there was another matter of which I should be made aware, but she was not prepared to talk to me about the matter on the telephone,” the Taoiseach said.

In a conversation with Ms Whelan at 6pm on Sunday about the civil case, Ms Whelan also told him “that the potential scale was far beyond the particular case”, he told the Dáil.

Believing the matter was “of very considerable concern”, the Taoiseach said the facts should be assessed by “somebody competent in the legal profession”. That person, understood to be a senior counsel, was consulted on Monday and Mr Shatter was informed of the situation that evening.

Pressed by Fianna Fáil leader Micheál Martin on why Ms Whelan did not pass on the information about the recordings before last Sunday, the Taoiseach said: “The Attorney General’s fundamental constitutional position is to give legal advice to the Government. She is bound to have all of the facts at her disposal before she makes a judgment.”

On the timing issue, the Taoiseach said it took time to establish the scale of the problem but the issue “had to be brought to a head” because the discovery process in the civil case had to be dealt with this week.

Ms Whelan did not attend Tuesday’s Cabinet meeting, where Ministers agreed to establish a statutory commission of inquiry, due to “a private family event”, a Government spokesman said.