Fitzgerald could have criticised questioning of McCabe

Legal sources disagree with Tánaiste’s claim it was illegal to interfere with Garda strategy

Sgt Maurice McCabe: Frances Fitzgerald would have been within her rights to instruct her legal team to tell the commission she did not agree with the style of questioning directed against him, legal sources say. Photograph: Collins

The Tánaiste, Frances Fitzgerald, could have "lifted the phone" and questioned the Garda Commissioner about instructions given to the Garda's O'Higgins Commission of Inquiry legal team, legal sources have said.

Fitzgerald also would have been within her rights to instruct her legal team to tell the commission, which was sitting in private, that she did not agree with the style of questioning directed against Sgt Maurice McCabe, the sources said.

Insisting that it would have been illegal for her to interfere with the Garda’s legal strategy pursued by the commissioner, Fitzgerald says she has received “fresh” Attorney General legal advice to copperfasten that.

The timing of the email from an official in the Attorney General’s office to an official in justice which lies at the centre of the controversy and which threatens Fitzgerald’s ministerial career is interesting.


It indicates that Fitzgerald and officials were being kept informed in a very live way as to what the Garda commissioner was doing at the inquiry on the afternoon of Friday, May 15th, 2015.

At 4.10pm that day the commission rose so that counsel for the commissioner could take instructions, after he had been asked if his line of questioning was authorised by the Garda commissioner.

At 4.34pm, after the short adjournment had ended, counsel Colm Smyth returned to confirm that the line of questioning had been authorised by the Garda commissioner.

Legal advice

The email from the senior justice official was sent at 4.57pm and contained the information conveyed over the phone to him from the Attorney General’s office, that “the Garda commissioner’s authorisation had been confirmed”. He went on to say that he understood, separately, that the authorisation might be the subject of further legal advice.

The email was sent to a number of senior officials within Fitzgerald’s then department, and to her then private secretary. Fitzgerald has said she forgot about the email, and was only reminded of it recently.

In the May 2015 email, the view is expressed by the senior Department of Justice official who wrote it that the minister did not have “a function relating to the evidence a party to a commission of investigation may adduce”.

He also said this view was shared by the official in the Attorney General’s office that he had just been speaking to on the phone about what was happening at the inquiry.

In the Dáil on Thursday, Jim O'Callaghan, Fianna Fáil spokesman on justice, pointed out that the Taoiseach, Leo Varadkar, said last week in the Dáil that: "As the department was informed after the fact, it was certainly not in a position to express any reservations about the legal strategy" being pursued by the Garda commissioner at the inquiry.

Whistleblower’s motivation

At the time he was speaking, Mr Varadkar did not know of the existence of the 2015 email that disclosed to the Department of Justice that the Garda commissioner’s legal team was raising matters that went to Sgt McCabe’s motivation for his whistleblowing activities.

“The Tánaiste was informed about it before the fact,” Mr O’Callaghan said. “Why did she not do what the Taoiseach suggested could have been done? The Tánaiste could have expressed reservations about the legal strategy. She did not do that.”

Legal sources said that the Garda commissioner reports to the Minister for Justice and that it is appropriate for the Minister to oversee the commissioner’s work and the expenditure of public funds, so long as it does not constitute improper interference in operational Garda matters.

The Minister also had a legitimate role in ensuring that Government policy in relation to whistleblowers was being observed by An Garda Síochána, the sources said.

Colm Keena

Colm Keena

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