Fiach Kelly: Fennelly Commission was wrong way to deal with Callinan issue

In technical terms, the vibes were not good. A small group of the most senior figures in Irish public life gathers in Government Buildings to discuss a matter of serious importance, the taping of phone calls in Garda stations.

Attorney General Máire Whelan suggests there is “criminal activity being engaged by An Garda Síochána”, although she later claimed she had not expressed such an unequivocal view.

Taoiseach Enda Kenny sends for his minister for justice, Alan Shatter, and then secretary general of the Department of Justice, Brian Purcell.

Under deliciously dramatic chapter titles, Mr Justice Nial Fennelly laid out the events of the night in his interim report, published this week, which Kenny says clears him of the accusation that he sacked former Garda commissioner Martin Callinan.

“Mr Purcell is called to the Meeting . . . Discussion of Confidence in the Commissioner . . . Discussion of Mr Purcell’s Task . . . Whether the Commissioner’s position was at issue . . . Mr Purcell Visits the Commissioner . . . the Commissioner’s proposal to retire . . . the Commissioner retires.”

The Fennelly commission was given different views by the main actors of what they understood to be afoot that Monday night, March 24th, 2014.

The Taoiseach says it was never his intention to pressure Callinan to resign. Shatter was firmly of the view that the commissioner's position was under threat, a view supported by Purcell.Whelan said Purcell's position was not discussed. Martin Fraser, secretary general at the Department of the Taoiseach, felt a consequence of Purcell's visit could be Callinan's resignation.

Conflicting accounts

No notes were taken and we have to rely on the interim Fennelly report, with all its conflicting accounts, to decide whether we agree with its conclusions or should draw our own. Yet from reading the report it becomes quickly apparent that Callinan’s resignation should never have been dealt with by a behind-closed-doors commission of investigation. That is not to disparage the work done by Fennelly and his team. Guided by their terms of reference, they produced a very thorough report.

However, commissions of investigation were arguably established to examine matters of systemic breakdown, not the events of one night in a room. The Garda taping matter is a systemic issue, but examining how a man came to vacate his job is not.

Doing business in the late hours from small rooms in Government Buildings has already attracted controversy, yet the banking inquiry has been held in public to allow people read, watch and assess the evidence of witnesses.

While not on the same magnitude – in that the banking inquiry is trying to get to the bottom of decisions and policies that have damaged almost every family in Ireland – the retirement, or sacking, as some claim, of a Garda commissioner is still a matter of serious public importance. The Oireachtas Committee on Justice, Defence and Equality made initial noises last year about holding hearings on the Callinan issue, but deferred to the commission of investigation when the Coalition included the commissioner's resignation in its terms of reference.

If the Oireachtas committee route had been followed, the evidence of witnesses such as Kenny and Shatter would have been out in the open for the public to assess. The character of the people putting themselves before the electorate when handling serious issues is important and an open inquiry would have put that on display.

Again, while relating to a different subject, Bertie Ahern’s extraordinarily peculiar finances were examined before a public tribunal, a method of investigation since discredited. As well as the at times incredible explanations of money going in and out of accounts, what helped do for Ahern was the very public breakdown of his former secretary Gráinne Carruth in the witness box. Would such a moment have been conveyed via the pages of a report of evidence given in private?

It is no good, however, for the Opposition to cry foul about the Fennelly process now. Wiser heads around Fine Gael were astonished last year that Fianna Fáil leader Micheál Martin did not force the Dáil to a standstill until the the Taoiseach answered questions in public on Callinan's resignation. It is highly unlikely we will ever see the transcripts of evidence given to the Fennelly commission, as Fianna Fáil has requested.

Yet voters, a great number of whom never held a candle for Callinan or Shatter, have not shown great interest in the contents of the interim report.

The Taoiseach has emerged relatively unscathed, his greatest sin perhaps tapping on the shoulder a man who had become a political liability and telling him it was time to go – although, of course, Kenny denies this and Fennelly found he did intend to pressure the commissioner into standing aside.

Some may admire a ruthlessness they see in the Taoiseach, unafraid to jettison allies who have become problems. Shatter, after all, resigned months after Callinan. James Reilly and Phil Hogan moved on in the Cabinet reshuffle which followed soon after. The greater risk to Kenny's reputation is if people feel they are being taken for fools and sold a story they do not believe, even if they do not care much for its main actors.

Would it not have been better to have shown people a full view of what happened the night Purcell went to visit the commissioner, to perhaps allow them make their own judgment?

Fiach Kelly is Political Correspondent

Stephen Collins is on leave