More questions than answers in Dáil over Frances Fitzgerald controversy

Background: Another embarrassing disclosure for Government

Another embarrassing disclosure has embroiled the Government in controversy. Once again it relates to Garda whistleblower Maurice McCabe.

Once again it is a minister for justice who is under considerable political pressure.

This time it is Frances Fitzgerald, who was the minister from 2014 to 2017, having succeeded Alan Shatter.

The controversy this time relates to the O’Higgins commission, which investigated allegations made by Sgt McCabe about inaction and corruption among some gardaí in the Cavan-Monaghan division. At issue is the very assertive strategy towards McCabe which was pursued by the legal team representing then Garda commissioner Nóirín O’Sullivan.


The Tánaiste came under sustained criticism on Tuesday, firstly, for a misleading response in which she said she was first made aware of that strategy only in 2016 when it became public after being leaked by journalists.

On Monday night, however, RTÉ disclosed a letter that showed she would have been made aware of it much earlier, in 2015, having been shown an email about the row that erupted over the strategy between the Garda and McCabe’s legal team.

Secondly, she was facing considerable pressure to disclose fully what she did and did not know in 2015 and 2016, and if she should have taken any action on foot of the knowledge she had.

Fitzgerald was essentially coerced by the Opposition into attending a special Dáil session last night to answer questions about what she did and did not know about the Garda commissioner’s strategy, and when she became aware of it.

She accepted that she would have read the 2015 email but said she did not remember it when she spoke to the Taoiseach last week. In any instance, she argued that the email - despite it being written a year earlier - bolstered her argument that neither she nor her department played any role in the Garda Commissioner’s strategy.

It emerged last year the senior counsel for the commissioner told commission chair Judge Kevin O’Higgins at an early stage of the hearings in 2014 that his “instructions were to challenge the integrity of Mr McCabe”.

However, he later informed the judge it was an error on his part to state that. He said instead his “instructions at all times were to challenge the motivation and credibility of Sgt McCabe”.

The content of the email was also released on Tuesday night. The email referred to a serious criminal complaint, one which has since been completely discredited.

“The allegation had been that a serious criminal complaint against Sergeant McCabe (which he has always denied) had not been properly investigated by the Garda Síochána.”

The email then surmises that the Garda raised the matter because it was potentially “relevant to motivation”. It also referred to the counsel saying this was the authorised approach of the Commissioner.

When it became known that this was the stated approach, it caused consternation and led to harsh criticism of then commissioner Noirin O’Sullivan for her approach.

In recent weeks, Labour’s justice spokesman Alan Kelly has been critically questioning the extent of knowledge within the Department of Justice on the issue and about the adversarial and assertive approach that was taken by the Garda commissioner.

The Government responded to Kelly’s persistent questioning by claiming the department and Fitzgerald had become aware of the strategy only in 2016.

Last week, the Taoiseach told the Dáil: “I spoke to the Tánaiste, who told me that she had no hand, act or part in this decision and that she was not aware of it until after the fact around the time it entered the public domain.”

The salient detail is the email was sent in 2015, a full year beforehand.

Fitzgerald, for her part, said the email in question had been unearthed in the Justice department only last Thursday. She said she had no memory of it but said she had read it, as she read all emails. She argued that her knowing in general of the strategy in 2015, rather than 2016, made no material difference whatsoever.

“This is an email between officials from 2½ years ago,” Varadkar told Sinn Féin’s Pearse Doherty. “It is not inconceivable and certainly should not give rise to conspiracy theories that it may take a few days for somebody to find such an email.”

The political difficulty for Fitzgerald was why she did not question more rigorously the approach of the Garda, rather than not becoming involved?

As Labour leader Brendan Howlin put it to her, she “surely should have intervened with the Garda Commissioner” once the intervention came to light.

None of the 12 or so Opposition questioners alleged that the department was involved in the strategy. The political charge was that Fitzgerald would have been acutely aware of the travails McCabe had endured at the hand of the Garda.

Surely, such an aggressive strategy should have raised flags in her mind. She cleaved to the line that the Minister had no function relating to the evidence a party to a commission may induce, despite criticism from Fianna Fáil Jim O’Callaghan on that matter.

It was a competent performance, if not entirely convincing. Where she was weakest was in explaining the delay between her discovering the existence of the email on Thursday and her conveying that information to the Taoiseach on Monday.

Donnchadh Ó Laoghaire of Sinn Féin asserted she had withheld it from the Taoiseach who had to make his own inquiries on Monday. “You were happy for the record to remain uncorrected until the media started poking around,” he said.

To be fair, both Fitzgerald and Varadkar were abroad for most of last week, making smooth contact a little difficult. Moreover, she is now in a different department, namely Business and Enterprise.

That said, she was a bit of wishy-washy when she explained the delay by saying she was waiting to see over the weekend “if other information would arise that would be relevant”.

She said she discussed the email with the Taoiseach on Monday, but did not say at what time. He himself only read the email late on Monday evening around the time its existence was made public. It was hardly a rush to correct the record.

That said, following Tuesday night’s session, it is clear the Tánaiste will survive this controversy, as long as something else does not emerge.