The email and the election

When I wrote this column all of the indications suggested that a general election in the south was very possible. There was enormous political and media fall-out from the discovery of emails appearing to show that the former Minister of Justice in the Irish government knew more than she had admitted about the efforts by an ex-Garda Commissioner to smear whistleblower Sgt Maurice McCabe.

On Tuesday Tánaiste and Minister Frances Fitzgerald resigned. With both Fine Gael and Fianna Fáil desperate to avoid a general election she had little other choice in the face of mounting political and public anger around the release of additional emails from the Dept. of Justice.

However, the resignation of Frances Fitzgerald is not the end of the issue. The Charleton Inquiry into protected disclosures will examine all of this after the New Year and serious questions remain about the actions of the current Minister for Justice Charlie Flanagan and the handling of the whole debacle by An Taoiseach Leo Varadkar.

The email and the election

By the time this column is published we will know whether there is to be a general election in the south before Christmas, if the Grand Old Duke of Cork, Micheál Martin, has marched the Soldiers of Destiny up to the top of the hill, and “marched them down again” again or if Tánaiste Frances Fitzgerald has fallen on her sword.

Over the last four years there have been a series of Garda scandals which have rocked the southern establishment. Alan Shatter, former Minister for Justice resigned in 2014 and a Garda Commissioner resigned/was sacked depending on whose version of the account you believe.

As a consequence An Garda Siochána has become the focus of Reviews, Commissions of Investigation and a Tribunal of Inquiry. These have looked at almost two million falsified alcohol breath tests, as well as thousands of wrongful motoring convictions. There are also serious criticisms of Garda treatment of whistleblowers. In July members of the Public Accounts Committee in the Dáil said that Commissioner O’Sullivan’s position was untenable in light of its findings into financial irregularities at the Garda Training College at Templemore. So grave has been the disquiet and so persistent the allegations of maladministration and worse within the Garda that the government was also forced into establishing a Commission on the Future of Policing to report on its structure, culture and ethos, recruitment, training and management. This came after years of refusal to introduce root and branch reforms.

The current political crisis has its roots in a convoluted saga about the content and timing of a key email that was sent to the Tánaiste and former Minister for Justice Frances Fitzgerald, and seven other senior civil servants in the Department of Justice, in May 2015. The email was ‘found’ three weeks ago on November 9^th. It was from Michael Flahive, an Assistant Secretary in the Dept. of Justice. It was based on a call he received from a senior figure in the Office of the Attorney General. Its purpose was to alert Minister Fitzgerald to the fact that the legal team for the then Garda Commissioner O’Sullivan had challenged the motivation of Garda whistleblower Sgt Maurice McCabe at the O’Higgins Commission of Investigation. The O’Higgins Commission had been set up in February 2015 to investigate claims by Sgt McCabe of Garda malpractice in Cavan and Monaghan area.

It was the intention of the Commissioner’s legal team to introduce a serious criminal complaint about an alleged sexual assault on a child, against McCabe in an attempt to undermine his credibility. The complaint had already been dismissed years earlier.

Maurice McCabe is the highest profile whistleblower in the history of An Garda Siochána. For ten years he has spoken out against alleged serious Garda malpractice, including a penalty point scandal which saw some prominent people having their penalty points for driving offences wiped. As a result of this and other accusations McCabe has faced a stream of attacks on his integrity and a malicious whispering campaign. However the Guerin Report in 2014 into the penalty point issue praised McCabe as a man of integrity. Subsequently Minister Frances Fitzgerald had publicly apologised to him in the Dáil. The Minister also met Maurice McCabe and his wife and said she regretted what the state had done to him.

When news of the existence of this vital email emerged last week former Justice Minister Fitzgerald said she couldn’t remember reading it. Given the high profile nature of McCabe and of his allegations, and the clear intent of Flahive to alert the Minister and the department to the Garda Commissioner’s legal strategy, many opposition TDs and citizens found it hard to believe that the Minister either hadn’t read the email or that the Justice Department hadn’t realised its importance.

On Sunday a spokesman for the Justice department confirmed that the Minister had ‘noted the email’. He said: “This is standard civil service language that means read.” The Minister also met the then Garda Commissioner the day after the email was received and did not mention it to her.

It has also emerged in recent days that Commissioner O’Sullivan told a senior official the Justice department in May 2015 about the legal row at the O’Higgins Commission.

So, the Justice Department was alerted on two occasions about the Garda Commissioners legal strategy but did nothing.

Throughout this row the Minister and her Government defenders have repeatedly said that she could not legally interfere in the work of the O’Higgins Commission. Some legal experts have publicly challenged this. But as the Garda Commissioner’s line manager the Minister for Justice could, and should, have questioned the Commissioner’s decision to embark on such a dangerous and reprehensible strategy against Maurice McCabe. Having spoken frequently of her admiration of Sgt McCabe the Minister should have defended him against this bogus allegation. The Minister chose to do nothing.

Instead over the next two years she and the government, including Taoiseach Varadkar, repeatedly expressed their complete confidence in the Garda Commissioner – right up to the point in September when Commissioner O’Sullivan announced her retirement.

In a further damaging postscript for the government to this crisis it emerged that the current Minister for Justice Charlie Flanagan was made aware of the email on November 13^th, four days after it was uncovered. Despite this neither he nor the other senior civil servants who were aware of it saw fit to inform the Taoiseach. He claimed on two separate days in the Dáil that he had spoken to the Tánaiste and had been told by her that she had “no hand, act or part informing the former commissioner’s legal strategy, nor did she have any prior knowledge of the legal strategy the former commissioner’s team pursued. She found out about it after the fact, but around the time it was in the public domain when everyone else knew about it as well.” This was May 2016 – a year after the email was sent to her.

We now know the Tánaiste and at least seven senior civil servants had been told in May 2015.

Sinn Féin gave the Tánaiste ample time to clarify her position.  Her explanations were unsatisfactory. On Thursday of last week Sinn Féin submitted a motion of no confidence in the Minister.

Despite its confidence and supply arrangement with Fine Gael the Fianna Fáil party followed suit and published its own motion of no confidence in the Tánaiste and former Minister for Justice. Now all the talk is of a Christmas election. Without Fianna Fáil’s backing the government cannot survive.

In the days since then there have been a series of meetings between the leaders of Fine Gael and Fianna Fáil. Leo Varadkar appears determined to back his embattled Deputy leader Frances Fitzgerald. What will Micheál Martin do? Last week Martin described the email as “damning” and claimed that it was not credible for the minister not to remember it. He said what was worse was she did nothing.

Neither of these leaders really wants an election at this time. The opinion polls suggest no outright winner. That is also true for Sinn Féin and other parties in the Dáil. But a blind eye cannot be turned to the dysfunctionality and lack of accountability that is at the heart of this government on this issue, and on housing and homelessness, and the crisis in health. Sinn Féin intends pursuing our motion of no confidence. That will only be averted if the Tánaiste resigns.