The questions surrounding Shatter’s use of confidential Garda information

The modern era and the advent of instant communications has thrown up a number of new political rules, all conceived by another modern phenomenon: the political spin doctor.

One, attributed to George Bush junior's chief adviser Karl Rove, is that if you are explaining you are losing.

The other was formulated by Tony Blair's communications' adviser Alastair Campbell who said that if a scandal involving a Minister dominated newspaper and TV headlines for four straight days, then he or she was a goner.

That said none of them reckoned for the Minister for Justice Alan Shatter. He doesn't do apologies or climb-downs. Unlike virtually every other politician in Dáil Eireann he is not at all worried about what people think of him and so doesn't do the hail-fellow-well-met act that most TDs and Senators do.

Despite the continuing row surrounding his disclosure of confidential Garda information neither of the two rules seem to apply to him. The controversy is five days old and running. Furthermore, Shatter spend an excruciatingly long 16 minutes yesterday making a “few comments” of explanation. And still the Minister’s self-confidence that he is right and everybody else is wrong remains impregnable.

Last week on PrimeTime he disclosed that Wallace had been warned by gardai last May for using a mobile phone while driving but given a 'ticking off'. On the programme, Wallace was thrown by the disclosure and said he couldn't recall it. He was so 'spooked', as he put it yesterday, that he did not challenge Shatter on the source of the information. That was left to presenter Pat Kenny who was quick on the uptake.

Yesterday, Shatter said that the matter came up during a general briefing he received from gardai on the issue. The incident involving Mr Wallace and the gardaí, he said, was by chance used as an example of a guard exercising discretion rather than issuing a fixed notice and penalty points.

Shatter justified it on two counts. The first was his contention that Wallace was not a private citizen but a public figure. Moreover, Wallace was a person who had campaigned against discretion being given to quash penalty points. Shatter argued it was his responsibility as minister to point out the political “hypocrisy” of Wallace, as he was a person who had benefitted from such discretion.

In other words, he was lumping Wallace in with Luke Ming Flanagan who campaigned against the quashing of penalty points without disclosing he himself had points quashed. He also asserted that the discretion Wallace enjoyed was the same.

But was it? Wallace was giving a ticking off and sent on his way after an encounter that lasted less than a minute. That happens to thousands of citizens every week and is perceived as a guard using common sense and judgement by sending a driver on his or her way with a finger-wag. Is it not of a different order and category than somebody actively seeking to have penalty points already issued quashed, based on a discretionary decision of a senior garda?

Shatter has been highly critical of Joan Collins and Clare Daly for making public the names of private individuals who had points quashed using parliamentary privilege. But it is arguable that's exactly what he has done with Wallace. Shatter's claim of hypocrisy on Wallace's part is dubious because Wallace has steadfastly said he never had an issue with a guard using discretion in that way.

In other words, did it justify him using confidential information and putting it into the public domain in order to score a political point, that some would consider to have been below the belt?

That is the key question and the one that will be pursued this week in the Dáil and elsewhere. Shatter said yesterday that it was “errant nonsense” to suggest that he was spying on political opponent. But if a political opponent criticises him or Garda operations in the future, can he give a reassurance that he won’t fillet the Garda files or use information gleaned from confidential briefings to criticise his opponent.

It's not a new phenomenon. In 2005, then minister for justice Michael McDowell gave reporter Sam Smith the Garda file on an investigation into allegations that another journalist Frank Connolly had applied for a bogus passport to travel with Republicans to Colombia in 2001. McDowell justified the release on grounds of national security. Then opposition leaders Enda Kenny and Pat Rabbitte criticised the grounds which McDowell had used but the clamour was muted, because none of the established parties had much sympathy for Connolly or for his cause. Maybe the same could be said for Wallace whose halo has long ago been dislodged.

In 1983 the coalition minister for justice Michael Noonan released garda information on authorisations to tap the telephones of journalists Geraldine Kennedy and Bruce Arnold. The order was made by his Fianna Fail predecessor Sean Doherty. While the release was highly political – like all the others – there were strong national security and public interest grounds behind it.

So what happens now? Well Fianna Fáil may decide at is parliamentary party meeting to table a motion of no confidence in Shatter. However that will not be heard in the Dail until next week, at which time the momentum may have died. Wallace is making a formal complaint to the Standards in Public Office Commission that Shatter acted in a manner that was inconsistent with the proper performance of his political functions. There may also be some data protection issues involved. Labour TD Kevin Humphreys has also tabled a series of parliamentary questions. It is also likely that the matter will dominate Leaders' Questions this afternoon.

Will there be consequences? Politically, it will depend on the attitude of the Labour leadership. So far, it has shown no appetite to be involved in the row and has sent out signals that it is not going to act as the moral conscience of government on this issue. If Labour at senior level does not press for an apology or for some assurance from Shatter that he won’t repeat the trick, it will all come to an end quickly.

If SIPO and the Data Protection Commissioner have deeper looks that may have consequences further down the road. There are some more specific questions surrounding the briefing that Shatter must answer. Who gave it to him? Was it the Commissioner? The incident was not recorded on Pulse and did not involve the gardai get out of their car (they pulled up alongside Wallace at traffic lights and rolled down the window). How come a record was made if no notice was issued? How did it come to the attention of senior gardai? Or was it remembered because Mick Wallace (a very recognisable figure) was involved?