Charleton tribunal has power to investigate Fitzgerald affair

Expansion of tribunal’s terms of reference part of talks aimed at averting election

The Charleton tribunal already has the power to investigate whether former minister for justice Frances Fitzgerald knew more than two years ago about the Garda's strategy towards whistleblower Sgt Maurice McCabe at the O'Higgins commission, according to legal sources.

The tribunal is investigating an alleged smear campaign against Sgt McCabe.

However, Labour Party TD Alan Kelly said he would like to see the tribunal get new terms of reference to report on the knowledge of Ms Fitzgerald and officials in her department and the Attorney General's office in relation to the Sgt McCabe issue.

The question of whether the tribunal’s terms of reference might be expanded is believed to form part of discussions between Fine Gael and Fianna Fáil aimed at averting a general election.


In a statement issued last Friday, the chairman of the tribunal, Mr Justice Peter Charleton, drew attention to the fact that the tribunal's terms of reference include inquiring into contacts between the An Garda Síochána and "any relevant person", including members of the Government and "State entities", in relation to the O'Higgins commission and other matters. State entities could include Government departments.

The O’Higgins commission, which sat in private, examined matters relating to the Garda’s Cavan-Monaghan division after allegations made by Sgt McCabe.

The Charleton tribunal is to examine whether any unjustified grounds were relied upon at the commission by former Garda commissioner Nóirín O’Sullivan to discredit Sgt McCabe.

The recent disclosure that in May 2015 the Department of Justice and Ms Fitzgerald were notified by email of the strategy being adopted at the O’Higgins commission by the Garda commissioner means the issue will inevitably feature strongly at the tribunal, according to a number of sources.

Seeking statements

The department has disclosed it is seeking statements from officials about the email, which was given to the tribunal last week.

It appears clear the email should have been disclosed to the tribunal earlier and why it was not disclosed is among the matters that should now be investigated, according to Mr Kelly.

The email records a conversation between a senior official in the department and a senior official in the Attorney General’s office concerning events that day at the commission.

A request for a comment from the Attorney General’s office as to whether it had disclosed any record of the conversation to the tribunal received no response last night.

The Department of Justice has since conducted a review of its files and found further documentation relevant to what the department and the minister knew, at the time, about the strategy being pursued at the commission by the Garda commissioner in relation to Sgt McCabe. These documents are now being forwarded to the tribunal.

The department has disclosed that it responded to discovery orders about some matters, and made voluntary disclosures about other matters to the tribunal. The most recent voluntary disclosure involved the May 2015 email.

Mr Kelly has complained that Dáil questions he submitted to Minister for Justice Charlie Flanagan should have led to the disclosure of the information causing the current political crisis.

Colm Keena

Colm Keena

Colm Keena is an Irish Times journalist. He was previously legal-affairs correspondent and public-affairs correspondent