Garda controversy a serious hurdle for the Government

A spectre looms in the background as the Cabinet seeks to dampen down the latest controversy to arise out of the Garda.

The fate of the previous minister for justice Alan Shatter, forced to resign in 2014 having been inundated by policing and justice controversies, was a traumatic event for Enda Kenny's last government. It was more traumatic for Shatter, of course.

Really, Shatter is not so much a spectre in the background in the current controversy. Rather he is walking, talking, article-writing, interview-giving, and warning Ministers about the dangers of being too close to a Garda commissioner who might one day have to take the rap for misconduct by force members.

The wider political dangers of a repeat of the justice and policing controversies of early 2014, when first the Garda commissioner and then the minister for justice were put in positions where they felt they had to resign, are appreciated by some in government.

The fact is Kenny’s first coalition never recovered its sense of purpose, discipline, unity and forward momentum after that. Anything similar would destroy this administration before it got off the ground.

The fear of unknown consequences is what is behind the pained attempts by Tánaiste and Minister for Justice Frances Fitzgerald to create just a bit of distance between herself and Garda Commissioner Nóirín O'Sullivan in recent days.

Not that Fitzgerald was publicly abandoning the Garda Commissioner. Not that she wasn't expressing confidence in her – she was, albeit in a qualified manner. Just a little bit of distance. So everyone can see it's not a case of – well, a case of Alan Shatter and Martin Callinan.

Mutating woes

On Tuesday, various Ministers came out backing O’Sullivan. Yesterday in Washington, the Taoiseach strongly endorsed her “100 per cent”. But it’s not their posteriors out the window if the latest Garda controversy mutates into something worse politically.

And so, speaking in the Dáil, Fitzgerald was more careful, more nuanced. There was no 100 per cent about it.

“I have met the commissioner and she accepts fully the recommendations and the report and has made it clear what her attitude to Sgt Maurice McCabe is at this point and was in the past. She has made that very clear in the statement. We have to accept that statement from the commissioner,” she said.

Later, on RTÉ's Prime Time, she parried questions on the leaked transcripts which included statements from the Garda Commissioner's lawyer outlining his instructions to challenge McCabe's "motivation and his credibility in mounting these allegations of corruption and malpractice".

“Do you have confidence in her if the reported transcripts are all fully accurate?” she was asked. Fitzgerald said she “had to go back to the point that these are transcripts that are taken out of context”.

“We don’t know the full context.” And if the context proves to be right? “I couldn’t possibly answer a question that is put like that.”

Yesterday in the Dáil, the distancing went on. It was not a matter for her to explain, Fitzgerald told deputies. It was a matter for the commissioner.

“Clearly, if the commissioner saw fit to make a further comment and she was in a legal position to do so, it would be helpful in answering some of the points made by the deputy. I have no doubt that within the legal constraints she will say as much as possible when she is questioned in the future on these issues,” Fitzgerald told the Dáil.

Garda HQ

Just in case there was any doubt that the Garda Commissioner could clarify the questions everyone had, Fitzgerald repeated it three times. Whatever else she does, the commissioner can’t brazen it out now.

Notwithstanding the Taoiseach’s 100 per cent, she has some explaining to do. The silence from Garda Headquarters last night is surely unsustainable.

The commissioner is certain to be asked to attend the Oireachtas justice committee in the coming weeks. But the realpolitik of the situation probably means that she will have to answer questions a lot sooner than that. Next week's meeting of the Policing Authority assumes importance now.

When she does answer questions, the defences of privilege or confidentiality are unlikely to suffice. The political problems are grounded in facts, as the most serious political problems always are.

The commissioner sooner or later will be questioned about the nature of her instructions to her barrister, Colm Smyth. But we know from the transcripts already published what those instructions were; if they were not as he has represented them, then presumably she will say so.

She will be asked about the Garda reports that apparently contained a false admission of malice on the part of McCabe - abandoned when he produced a recording of the meeting at which no such admission was made. This has already been raised in the Dáil. “God knows where he would be,” Micheál Martin said, “if he had not recorded.” It is a crucial point.

And she will be asked broader questions about the Garda’s internal culture and treatment of dissent, not just by rank-and-file members, but by the structures set up by the Garda hierarchy to deal with such matters.

For one example – and there are many in the report – the O’Higgins commission finds that, after some of McCabe’s complaints to senior Garda officers, the Garda Pulse computer system was retrospectively altered to make it seem as if some of the complaints were groundless.

Ultimately there is a significant problem with the way some gardaí behave – and, when they misbehave, how the force itself deals with that.

While that situation continues, political danger – for Minister and Garda Commissioner – will continue to lurk around every corner.