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Claims that department knew nothing of McCabe strategy torpedoed

Charleton tribunal evidence casts new light on repeated Government denials

Former minister for justice Frances Fitzgerald. Photograph: Eric Luke

The revelation at the Charleton tribunal earlier this week that the Garda legal team sought guidance from the Department of Justice about the strategy it employed towards the Garda whistleblower Maurice McCabe contradicts many of the statements made by the Taoiseach and Government Ministers inside and outside the Dáil before Christmas.

The controversy over what the Department of Justice and its then minister, Frances Fitzgerald, knew about an aggressive legal strategy employed by the lawyers for the former Garda commissioner Nóirín O’Sullivan during the O’Higgins inquiry raged for more than a week late last year.

For a time the Government hovered on the brink of collapse and the country faced a general election. It was only defused when Fitzgerald – all the time protesting herself innocent of any impropriety – resigned from her cabinet position to save the Government. All the while, she was defended to the hilt by the Taoiseach and her Government colleagues.

Fitzgerald and the Government consistently said neither she nor the Department of Justice knew anything about the Garda strategy – to question McCabe’s motivation for his complaints – and that she had, in Taoiseach Leo Varadkar’s oft-repeated words, “no hand, act or part” in the strategy.

Fitzgerald said she did not remember an email that brought the clash to her attention. She resigned when further emails sent to her on the subject were revealed.

However, Ministers and the Taoiseach continued to insist she and the Department of Justice knew nothing about the Garda strategy.

But the evidence at Monday’s sitting of the Charleton tribunal – which is examining allegations of a Garda smear campaign against McCabe – cast the repeated denials in a new light.

Contradictions

This is what the Taoiseach told the Dáil during some of the first exchanges, on November 21st, on the controversy:

“I can confirm once again that the Department of Justice and Equality had no hand, act or part in the legal strategy pursued by the former Garda commissioner. The Tánaiste had no hand, act or part in the legal strategy pursued by the former Garda commissioner. The Department of Justice and Equality had no prior knowledge of it. The Tánaiste had no prior knowledge of it either, and therefore could not influence it. The Department of Justice and Equality only found out about it after the fact – after it had already happened.”

Now look at what the various statements to the tribunal from the gardaí and from senior Department of Justice officials, as outlined by the tribunal on Monday, say about these events.

When McCabe’s counsel objected to the questioning of his client’s motives and credibility, the Garda legal team sought to have their instructions confirmed by the Garda commissioner. But the commissioner did not simply confirm those instructions; instead she sought time to obtain guidance from the Department of Justice. She contacted Ken O’Leary, one of the most senior officials in the department, to discuss the matter with him.

He indicated it was a matter for her, but that she should listen to the guidance of her legal advisers, while bearing in mind the need to protect Sgt McCabe – but also the gardaí against whom he had made serious allegations.

The commissioner asked O’Leary – a figure of vast experience in the department – if, based on his experience, there was anything she should be mindful of. This sounds like a plea for guidance, although O’Leary’s testimony appears adamant that no specific guidance was offered.

However, if the Government’s line about “no hand, act or part” in the Garda legal strategy may be just about defensible, the claim the department knew nothing about the strategy in advance is blown out of the water by Monday’s evidence.

Acting together

The following day in the Dáil, questioned further on the controversy, the Taoiseach returned to the same theme:

“All I can do at this stage is restate and remind the House of what I said previously; first, that the Tánaiste had no hand, act or part in the legal strategy pursued by the former Garda commissioner. There is an attempt in some way to suggest in this House and other places that the State or State entities were acting in collusion or all acting together. That is not the case. The Garda has its own legal team and advice, as the commissioner at the time did, and the department has its legal team and advice.”

But “acting together” is precisely what the Garda commissioner seems to have envisaged, the evidence suggests. The flurry of contacts between the gardaí and the Department of Justice on the day suggests the expectation of the gardaí was that it would be guided by the department, its senior officials and – ultimately – its minister.

If the relationship between the department and the gardaí also extended to any – so far unproven – smear campaign against McCabe, the fallout from this affair may have a long way to go.