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.

HOWEVER

 "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 Court.to 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!