Wednesday, December 20, 2017

Justice Ministers Kevin O'Higgins to Charlie Flanagan: from Decency to Decadence

Kevin O'Higgins Minister for Justice 1922-27

Charlie Flanagan, Minister for Justice and Equality June 2017 - ?

Introduction and Summary

Diarmaid Ferriter has an article on the history of the Department of Justice in the Irish Times on 2 December - to show the background to the current Scandal/Hysteria
Department of Justice has History of Dismissing Challenges

The article is behind a paywall but Ferriter  stresses the huge challenges faced by the State in its early years - and the role of the Dept of Justice and its first Minister Kevin O'Higgins.

... In most of these tasks civil servants played a key stabilising role and also generated much power for themselves. As JJ McElligott assistant secretary of department of finance in 1923 saw it, one of the advantages of the inexperience of O'Higgins and his colleagues and the distraction of the Civil War was that it allowed civil servants to get on with State building without too much political interference.

It is no harm to remember this heritage in light of the turmoil witnessed this week. A viable democracy and effective Civil Service emerging in the most difficult of circumstances were two of the main achievements of that era. Another enduring legacy of that period was excessive centralisation, too much power in the hands of individual civil servants and contempt for those who sought to expose wrongdoing or ask troubling questions.

On the assassination of Kevin O'Higgins in 1927, Ferriter writes:

O'Higgins was one of the most intriguing characters of the Irish Revolution and the subsequent counter-revolution  of which he was in the vanguard. Shot dead by three IRA men acting independently on his way to Mass in 1927, he is often regarded as the uncompromising "hard man" of Cumann  na nGaedheal in  the 1920s. In many respects he was, but he was no unthinking militarist with a lust for blood, and even during the Civil War was anxious legal normality take the place of martial law.


 "There are no real rules of war", O'Higgins insisted, in defending the execution of anti-Treaty Republicans: "The safety and preservation of the people is the highest law." The attempt to dehumanise his Civil War opponents was propagandist caricature and ignored the sincerity and depth of their feelings of betrayal; just as he, in turn, was caricatured as a man whose heart had turned to stone. It had done nothing of the sort. In his colleague Eoin MacNeill's memoir of these fervid years, finally published last year, MacNeill recalled how he witnessed the assassination of O'Higgins in 1927. As MacNeill cradled him, O'Higgins told him "I want you to say that I forgive my murderers".

This was all the more remarkable given that four years previously during the Civil War, O'Higgins had buried his father after Republicans killed him during an attack on his house......

Compare that to the behaviour of the current Minister for Justice who slandered former Sister of Mercy Nora Wall in the Dail in 2009 and who is now trying to blame his own civil servants for his political problems!
Justice Minister Charlie Flanagan and Former FG Chair Phil Hogan Vs George Hook and Nora Wall

Resignation of Tanaiste (Deputy PM) Frances Fitzgerald 28 Nov 2017

Frances Fitzgerald succeeded Alan Shatter as Minister for Justice after the latter was forced to resign in May 2014  and held the post until June 2017 when she was appointed Tanaiste. She was then succeeded by Charlie Flanagan as Minister for Justice. Notably Shatter himself had been  forced to resign in a bogus "scandal" that was linked to the Sergeant  Maurice McCabe whistleblower affair. A report to the then Taoiseach (Prime Minister) by Sean Guerin  into allegations made by McCabe claimed that Shatter had "not heeded" McCabe's voice. HOWEVER in May 2016 the O'Higgins Report concluded that Shatter, as Minister for Justice, had taken a personal interest in McCabe's complaints and allegations, had dealt with them appropriately, promptly and reasonably and that there had been a failure by McCabe to respond to letters sent by Shatter and his officials to McCabe's solicitors. Typically, this vindication was of no obvious benefit to Shatter - who had also lost his Dail  seat in the February 2016 General Election. Nor did it seem to do McCabe any harm!

Alan Shatter's political career was effectively ended by a fake scandal that was based on  the allegations made by Sergeant Maurice McCabe. I strongly suspect the current Charleton Tribunal will vindicate Frances Fitzgerald conduct when she was Minister for Justice, just as Mr Justice Kevin O'Higgins vindicated Alan Shatter. But will it make any difference? Fitzgerald was forced to resign because she allegedly knew about "smears" being used by the Garda high command in 2015 when they were defending themselves against allegations made by Sergeant McCabe in the course of the investigation by Mr. Justice O'Higgins.  In two recently discovered emails, from 2015, when she was justice minister, Fitzgerald was warned about “aggressive tactics” being deployed against Sgt McCabe by the Garda leadership. But what did these "smears"and "aggressive tactics" consist of? Why nothing more than the perfectly normal tactics used by defense lawyers when they are faced with false allegations against their clients. In addition to clearing Alan Shatter, Mr Justice O'Higgins concluded that claims of corruption made by Sergeant McCabe against five of his superiors - up to and including Garda Commissioner Martin Callinan - were false. It appears that the "aggressive tactics" of Garda management were both justified and successful! So why then was Frances Fitzgerald forced to resign?

The problem is that politicians - on all sides - insist on treating Maurice McCabe as a sacred cow, a secular saint who can do no wrong. This has continued even after the publication of the O'Higgins Report. As reported in an article by Senan Molony, Taoiseach Leo Varadkar said in the Dail on 21st November:

"I want to say Sgt McCabe is somebody who I have had dealings with. I met him when I was minister for transport, tourism and sport when he made allegations relating to penalty points. He is one of the bravest people that I have ever encountered in public life and he is somebody who has been very much wronged by the State on a number of occasions because of his bravery and because of his willingness to shine a light into some dark places."

Frances Fitzgerald  had expressed similar unconditional support for the whistleblower. This placed her and the Government in a ludicrous dilemma where the Opposition expected them to prevent Sergeant McCabe's Garda colleagues and superiors from defending themselves against false accusations made by the whistleblower.  Any attempt to do so was seen by the Opposition as "aggressive tactics" and "smears"!

 [ As also reported by Senan Molony, Labour Party leader Brendan Howlin said:
The legal strategy was designed to fundamentally discredit Sgt Maurice McCabe and subvert the course of justice, a matter of enormous importance. This good man could have been destroyed.’ He added: ‘At the same time the Garda commissioner [then Noirin O'Sullivan] was instructing her lawyers to discredit Sgt McCabe, she and the Tánaiste [Frances Fitzgerald] were publicly lauding him. ‘The strategy was fundamentally dishonest.’]

Following the fall of Frances Fitzgerald and the political destruction of Alan Shatter, the current Minister for Justice Charlie Flanagan is now firmly in the firing line. It is useless to  expect him to do the decent thing and criticise Sergeant Maurice McCabe. Clearly he is going to throw his civil servants to the wolves in an attempt to save his own political skin!

Charlie Flanagan (and PM Leo Varadkar) Vs Their Own Civil Servants

Charlie Flanagan has publicly supported Sergeant Maurice McCabe as did Frances Fitzgerald when she was Minister for Justice, not to mention Taoiseach Leo Varadkar who supported Fitzgerald until the media and political pressure to dump her became impossible to withstand. Flanagan and Varadkar are the likely next targets of this witch-hunt and they have no intention of questioning the credibility of Sergeant McCabe. Accordingly they need to provide the witch-hunters with other scapegoats. Unfortunately the leader of Fianna Fail Michael Martin, is taking the view that Fine Gael's difficulty is FF's opportunity and piling on the pressure.

Jennifer Bray Deputy Political Editor of The Irish Daily Mail wrote on 30 November:
After a fortnight that saw one minister and a senior civil servant quit, another minister apologise to the Dail  and the Taoiseach forced to correct the House record twice, Mr Varadkar's position has weakened and Mr Martin is demanding major reforms in how this Government works - particularly within the harshly criticised  Justice Department. [My emphasis] ......

An independent group will be established to implement the recommendations of the Toland Report, which was published in 2014, and found there was a 'deferential relationship' towards the gardai in the department. The group will review the specific relationship between the department and the  gardai. ..
Mr. Varadkar has said that an external inquiry will investigate how key emails about the treatment of whistleblower Maurice McCabe were mot among the 230 documents sent to the Charleton Tribunal, which is inquiring into the treatment of the Garda sergeant. And after twice correcting the record of the Dail,the Taoiseach has said: 'I will be holding the department and its senior officials to account to ensure that neither I nor any minister nor any member of the Dail is ever put in that position again.' .....

The Taoiseach said that the 'change and implementation group' is to review the culture in the department and make recommendations, particularly in light of the evidence of a secretive culture, and a failure to provide accurate information to the Oireachtas. ...

Justice Minister Charlie Flanagan also this week apologised for his role in the saga. He said he was 'shocked and frankly, horrified' that there were records in the department that should have been provided to the tribunal. He said it has been ''a major challenge at every step to obtain complete information in a timely manner', adding: 'Indeed on a few occasions recently, information has been provided by me, to the Taoiseach, and then to this House, which has proved subsequently to be inaccurate. This is completely unacceptable and I wish to formally apologise to the Taoiseach, to you Ceann Comhairle, and to the House'.

TRANSLATION: Senior Civil Servants in Department of Justice are to blame for the fact that our Minister for Justice and our Prime Minister refuse to challenge the credibility of a 'whistleblower', several of whose allegations have already been found to be false by the Report of the O'Higgins Commission.of Investigation

Three Inquiries Now in Progress (December 2017)

There now appear to be three different inquiries in process centered on the Department of Justice and the Gardai all resulting from the allegations of Sergeant McCabe - he whose conduct must never be criticised!

  • One is the Disclosures Tribunal chaired by Mr Justice Peter Charleton of the Supreme investigate alleged smears against Sergeant McCabe (by senior Gardai whom he wrongly accused of corruption!).  I think this is due to report around Easter 2018. 
  • A review of the email 'scandal' ordered by the Taoiseach to ascertain why certain emails now deemed relevant for the Disclosures Tribunal were not discovered earlier by senior civil servants in Department of Justice. This review was originally supposed to be carried out by the Secretary General of Dept of the Taoiseach but - following the usual media outcry - it has been given to an "independent" barrister - senior counsel Michael Collins. The deadline for the completion of the review has according been moved from the end of 2017 to 19 January 2018.
  • There is also a "root and branch" investigation into the functioning of the Justice Department which has been agreed between Leo Varadkar and Fianna Fail leader Michael Martin,following the recent controversies. According to the Irish Times on 28 November, Leo Varadkar said that:  An independent change and implementation group [My emphasis] will review the department’s culture particularly in light of “evidence of a continued siloed and secretive culture and a failure to provide accurate information to me and the Oireachtas”. The group would “appropriately structure” the relationship between the Garda and department to ensure accountability and better performance.
When Varadkar talks about a "continued siloed and secretive culture", this is a reference to the Toland Report on the Dept of Justice published in July 2014. Senior civil servants regard the Report as  superficial and misguided. Its publication led to the resignation of then Secretary General Brian Purcell and the extreme difficulty in getting a replacement for him. Noel Waters was supposed to take over as temporary caretaker for a few weeks until a new Secretary General could be appointed. However no credible candidate emerged over the next two years and Waters reluctantly accepted the poisoned chalice in October 2016. Now Waters has also resigned and the Toland Report is back on the agenda with a vengeance!
In an Irish Times article on 30 November  Colm Keena quoted the views of senior civil servants on Toland:
...... Richard Moore, who spent three years with the department as press officer for [Fianna Fail Justice Minister, 2008-11] Dermot Ahern, said he would describe the department as being “protective of rather than deferential to the Garda”. In his experience working in five different departments, the senior staff in the department “are among the best I came across”. His experience was of a high standard of competence and an ability to deal with the crises that are inherent in the work of the department. “There was no headless chicken stuff when I was there.”

Another senior political source said his experience was the direct opposite of what the Toland report said about the department’s relationship with An Garda Síochána. The Toland report was “superficial and unsubstantiated” with very little evidence produced for what was in essence “a series of assertions. In my experience there was no silo mentality,” according to this source. [My emphasis]

Colm Keena remarks that Toland also noted that “one of the key strengths” of the department was the “willingness, flexibility and can-do attitude of many of its loyal staff”. Unfortunately this is something that is unlikely to survive a politically motivated onslaught by our Taoiseach and Minister for Justice, both interested in diverting media attacks away from themselves and towards their civil servants.

FINALLY My Predictions for 2018

Of the three inquiries currently in progress, I think it is likely that:

  • Mr Justice Peter Charleton (Disclosures Tribunal) will conclude that senior Gardai did not conduct a "smear campaign" against  Sergeant Maurice McCabe during the course of the O'Higgins Commission of Investigation, but simply defended themselves against the false allegations of corruption that he had made against them.
  • Regarding the email inquiry, senior counsel Michael Collins will find that there was nothing untoward about the late location of certain emails for the Disclosures Tribunal. At most he will find that civil servants in Dept of Justice were overwhelmed by the volume of work generated by numerous Parliamentary Questions.
  • The REAL disaster will occur  in relation to the "Change and Implementation Group" which is likely to demand that the recommendations of the Toland report be fully implemented in spite of the fact that they are impractical. This is likely to damage the ethos of the Department of Justice and make it difficult to attract and retain high-performing senior civil servants - including a credible new Secretary-General!

Obviously Justice Minister Charlie Flanagan does not have the moral stature to stand up for his civil servants in the face of ignorant or malicious criticism. He will agree to implement any "reforms" in order to save his own political skin!

Saturday, December 2, 2017

The Sergeant and The Secretary-General: Can We Trust Our Civil Servants?

Noel Waters - former Secretary General Dept of Justice and Equality

Sergeant Maurice McCabe - Whistle-blower Extraordinaire

Introduction and Summary

Since 2014 the Garda Whistleblower Scandal - mainly centering on Sergeant Maurice McCabe - has resulted in the resignation of two Ministers/former Ministers of Justice (Alan Shatter in May 2014 and Frances Fitzgerald now on 28 November ), two Garda Commissioners (Martin Callinan in March 2014 and Noirin O'Sullivan in September 2017), two Secretary-Generals of the Department of Justice and Equality (Brian Purcell in July 2014 and now Noel Waters on 28 November). The reputation of Taoiseach (Prime Minister) Leo Varadkar has been weakened as has that of the current Minister for Justice Charlie Flanagan. Charlie Flanagan has been forced to apologise in the Irish Parliament to one of his chief critics Alan Kelly TD. and  retains his position largely because nobody wants an election before Christmas. (Also the opposition have already got their pound of flesh following the recent resignations of Frances Fitzgerald and Noel Waters!) 

The effect of the allegations made by Maurice McCabe has been extra-ordinary - not least because the report of the O'Higgins Commission published in May 2016 found that many of his dramatic allegations were false - a point I covered in my recent article "Sergeant Maurice McCabe and 'Corrupt' Garda Officers. For example

(i) The report cleared the former Garda Commissioner Martin Callinan of an allegation of corruption made by Sgt McCabe regarding the alleged placement of a senior officer on a promotion list. The allegation had no foundation
(ii) Complaints of corruption made by Sgt McCabe against Assistant Commissioner Derek Byrne, Chief Superintendent Colm Rooney and Superintendent Michael Clancy were all found to be hurtful and unfounded. Sergeant McCabe also made allegations against his immediate superior Inspector Noel Cunningham– later promoted to superintendent. These were also dismissed and categorised as “unjustified criticism".

(iii) Claims of corruption in investigations. The report found no evidence of garda criminality or corruption, but found junior gardaí were allowed investigate cases without sufficient supervision from more senior officers..............

MY QUERY:How is it possible for anyone to mistakenly accuse FIVE superior officers - and some colleagues - of corruption?

The Current Position:

In February 2017 the then Minister for Justice, Frances Fitzgerald set up a "Tribunal of Inquiry into Protected Disclosures", sole member Mr Justice Peter Charleton, Judge of the Supreme Court. This is to investigate whether former Garda Commissioners Callinan or O'Sullivan or other senior Gardai, contacted the media or otherwise tried to discredit whistleblowers who made disclosures of wrongdoing - mainly Sergeant Maurice McCabe but also Garda Keith Harrison. Also to investigate if senior Gardai attempted to use false allegations of sexual abuse to discredit Sergeant McCabe or Garda Harrison.

On 30 November Mr Justice Charleton published an Interim Report which dismissed the allegations made by Garda Keith Harrison in the  strongest terms. An article in is headed
 'This is utter nonsense': How Justice Charleton eviscerated Garda Keith Harrison's claims 
with subheading
"Unequivocally, confidently, and often brutally, Charleton has dismissed the claims made by Harrison"

On 2 December the Irish Independent carried a short article headed "The TDs Who Backed Keith Harrison" and named them as Labour TD Alan Kelly, left-wing Independents Clare Daly and Mick Wallace and Sinn Fein TD Pearse Doherty. All have also supported Sergeant Maurice McCabe. (For example see article in the Irish Times on 20 February 2017 Mick Wallace: To change An Garda, get rid of its hierarchy ).

The Current Problem - Desperate Politicians Targeting Civil Servants

Politicians, members of An Garda Siochana and senior civil servants are being targeted by an out-of-control media bent on whipping up hysteria and bringing down any prominent citizen. However the politicians are not just victims of hysteria. Several of those caught up in the current witch-hunt are left-wing and 'liberal' types who were very happy to use the media against their own perceived enemies. Now they find to their horror that they themselves have become prey for the monster they helped to feed! The reaction of Justice Minister Charlie Flanagan and Taoiseach Leo Varadkar is to blame their civil servants - who are forbidden by law to engage in politics and therefore have great difficulty in defending themselves. 

[The targets of these previous witch-hunts have been either Catholic clergy and religious or 'reactionary' journalists. However the influence of the Catholic Church in Ireland today is less than zero and the number of Irish journalists with viewpoints opposed to the 'liberal' consensus is also very small. One response  of 'liberals' is to turn on each other but for politicians, it is also tempting to blame their civil servants!]

Alan Shatter claimed in 2009 that the Catholic Church was implicated in the murder of a 10 year old girl in 1970. He demanded - and got - a high level Garda inquiry lasting a year,  into his false allegation. 

Charlie Flanagan slandered Nora Wall in the Dail (Irish Parliament) also in 2009 - repeating an allegation in respect of which she had received libel damages from the Sunday World in 2002. 

Leo Varadkar and Frances Fitzgerald supported the witch-hunt against journalist Kevin Myers a few months ago - and approved of the fact that he had been fired by the Sunday Times. 

Alan Shatter's political career has since  been terminated - and that of the others adversely affected - by the type of media hysteria that they themselves had endorsed when it suited them to do so. Now the politician-survivors want to present the media mob with other targets!

Resignation of Secretary General Noel Waters on 28 November

When the previous Secretary General of Dept of Justice Brian Purcell stepped aside in July 2014, following criticism of his Department in the 'Toland Report', he hinted that he did not agree with the findings of that Report. His reluctant successor Noel Waters went  a lot further when he told Minster Charlie Flanagan of his decision to resign. An article in the Irish Independent by Shane Phelan on 29 November is headed Departing Justice Boss Makes an Unprecedented Attack on Taoiseach

It is indeed unprecedented for a senior civil servant to make an attack on politicians but this is this is what Noel Waters has done in defense of his own staff in the Department of Justice. 

The departing secretary general of the Department of Justice fired a parting shot at TDs and the media as he retired yesterday with immediate effect. Noel Waters defiant email to colleagues notably came within hours of Taoiseach Leo Varadkar making a speech in which he described the department as "dysfunctional". Mr Waters ...claimed that much of the criticism voiced in the Dail and the press had been "unwarranted" and that he expected the department to be vindicated by an external inquiry......His decision came after much criticism of the department's failure to disclose emails to the Charleton Tribunal when it sought information earlier this year.

Mr Varadkar announce he was ordering an external inquiry into why important emails "were not found and therefore not sent on" to the tribunal. This inquiry will report before Christmas. If the emails were deliberately withheld from the tribunal, something the department denies, it would amount to a criminal offence. The emails revealed Ms Fitzgerald had been told of the "aggressive stance" then Garda Commissioner Noirin O'Sullivan's legal team was taking against Sergeant Maurice McCabe at the O'Higgins Commission.

Mr. Varadkar also said the Government was accelerating reforms already in train, and was planning "radical action to restore public confidence in the Department of Justice".

But in his letter to colleagues, Mr Waters claimed the department had been to "a barrage of unwarranted criticism in recent days and most particularly today. I want to assure you that in so far as is humanly possible, this department has sought at all times to act appropriately, upholding the law and the institutions of the State" he said. "Many of the claims about how the Department has acted that have been made in the media and the Dail are not true, and I am confident that the processes that the Taoiseach has announced will show that to be the case".

While the above headline highlights the role of Taoiseach Leo Varadkar, the  article on top of the same page  is headed  'I Missed Significance of Email at Centre of Row,' Admits Flanagan and features our current Justice Minister disclaiming personal responsibility and blaming his own officials. I suspect that  is the more likely cause of Noel Waters resignation!

Extracts from the latter article by 'Group Political Editor' Kevin Doyle:
Justice Minister Charlie Flanagan admitted that he "missed the significance" of the email at the centre of the controversy that brought the Government to the The under-fire minister told the Dail last night [28 November] that he was "shocked and frankly horrified" that documents in the possession of the Department of Justice had not been handed over to the Charleton tribunal. He poured blame on officials in his department saying it was "a major challenge at every step to obtain complete information in a timely manner, indeed on a few occasions recently, information has been provided to me, to the Taoiseach, and then to this House, which has proven subsequently to be inaccurate. ". .....

Fianna Fail leader Michael Martin told the Dail the current row "must be the nail in the coffin of the secrecy and silos in the Department of Justice. Yes there must be a fundamental change in the culture of that Department, but Government must also take responsibility and take legitimate questioning by the Opposition, not as partisan grandstanding all the time.. Over the past three weeks the Government has taken too dismissive an attitude to Opposition members who raised very important and profound questions," he said.

As part of the reforms being planned for Justice, TDs are to be given an opportunity to sit down face to face with the senior officials to ask questions........

There is a discussion on the website regarding the topic  "Charlie Flanagan Next" and at one point I tried to summarise as follows:
The basic issue is fairly straightforward. Sergeant Maurice McCabe claimed that FIVE of his superiors were corrupt - all the way from the Inspector who was his immediate boss right up to Garda Commissioner Martin Callinan. These claims were found by the O'Higgins Commission to be false and it was inevitable that the Gardai were going to contest them. But at the same time politicians, like the then Justice Minister Frances Fitzgerald, felt obliged to treat Sergeant McCabe as a paragon of virtue and truth. There was an obvious contradiction there. The way to avoid this in future is for claims by Whiste-blowers to be treated in the same way as any other allegations of wrong-doing. This means they are NOT to be automatically accepted OR rejected from the word go!

The politicians - including Taoiseach (Prime Minister) Leo Varadkar and current Justice Minister Charlie Flanagan - have tried to iron out the contradiction and evade responsibility by accusing their civil servants of failing to supply them with accurate information. One result of their behaviour is that it will be very difficult to find anyone of suitable caliber to replace Noel Waters as Secretary General of the Department of Justice. His predecessor Brian Purcell was obliged to step aside in similar dubious circumstances in 2014. Noel Waters was originally supposed to fill the position on  a temporary basis for a few weeks until a new Secretary General was appointed but  no suitable candidate emerged to accept the poisoned chalice. So who on earth is going to accept it now?