Updated: 4 February, 13.38
THE TAOISEACH HAS defended making Alan Shatter aware of the terms of reference of the Commission of Investigation into Garda malpractice before the Dáil knew what they were.
During Leaders’ Questions today, Gerry Adams asked Enda Kenny if it was “normal practice” to send terms of an investigation to a backbencher before making them known to the lower house.
Fianna Fáil’s justice spokesperson Niall Collins raised the issue last night:
Shatter was also told that Justice Kevin O’Higgins was to be the sole member of the Commission before the information was presented to the Dáil or made public.
Kenny said the former justice minister had to be made of the terms as he is involved in litigation surrounding the investigation.
He also rejected Adams’ assertion that the fact letters were sent from Shatter to him and Ceann Comhairle Seán Barrett regarding the issue had to be “dragged out of [him]“.
Yesterday evening, the Taoiseach’s office published correspondence between Kenny’s private secretary and Shatter’s solicitor regarding the former justice minister’s objections to elements of the proposed inquiry into Garda malpractice.
The letters show that Shatter was made aware of the terms of reference on 21 November. last - a month before they were published by the Justice Minister Frances Fitzgerald.
The release of the correspondence came on foot of the Ceann Comhairle’s decision last week not to allow the Dáil debate the setting up of the Commission. (That decision in itself caused another, now-resolved row between Barrett and the opposition parties. More on that here.)
Ceann Comhairle withdraws comments about Fianna Fáil:
The correspondence, published in full here, dates back to September and covers the proposed terms of reference for the Commission of Investigation into allegations of malpractice in the Cavan-Monaghan Division of An Garda Síochána.
The Commission, chaired by Justice Kevin O’Higgins, has been established on foot of the findings and recommendations of a report by barrister Seán Guerin into claims made by the garda whistleblower Maurice McCabe.
Guerin’s damning report led to Shatter’s resignation as justice minister last May. However, the Fine Gael TD has since lodged a High Court action to overturn some of the Guerin report’s findings.
Now this new correspondence shows a series of exchanges between the Taoiseach’s private secretary Nick Reddy and Shatter’s solicitor Brian Gallagher of Gallagher Shatter, a law firm in which Alan Shatter is a partner, between 9 September and 17 December 2014:
In the first letter, dated 9 September last year, Gallagher writes to the Department of the Taoiseach raising concerns about the then-unpublished terms of reference for the Commission of Investigation.
Gallagher states that Shatter is “gravely concerned” that the terms of reference would include matters in the Guerin report concerning Shatter’s conduct and his High Court challenge to certain aspects of the Guerin report.
According to the letter, Shatter is “strongly of the view that the conclusions were wrongly and unconstitutionally arrived at”. The letter seeks assurance that these matters, subject of the court action, will not form part of the terms of reference.
In a response on 7 November, the Taoiseach’s private secretary Nick Reddy essentially says that the Government is of the view that the content of the Guerin report and the conduct of Seán Guerin himself cannot have any bearing on the Commission of Investigation.
“The Commission process is wholly independent, separate and distinct and is governed by Statute in all material respects,” writes Reddy.
In its response to Reddy on 17 November, Gallagher writes that Guerin’s conclusions on Shatter as “a Minister or as indeed as a politician and lawyer are irredeemably flawed”.
It says that to suggest there is no “causative connection” between the two processes – Shatter’s legal action and the Commission of Investigation – is “simply a fallacy”.
A brief response from Reddy on 21 November includes a draft of the terms of reference for the Commission of Investigation and states that the Government considered the matters set out in those terms of “significant public concern”.
A response from Gallagher on 25 November says that Reddy’s previous response “ignores” the substantive issues raised in the previous correspondence and seeks a “substantive and detailed reply”.
Reddy acknowledges the reply on 26 November and promises to “revert to you”.
But on 8 December, Gallagher writes to Reddy again to note that there has been no substantive response. Enclosed with this letter is a copy of Alan Shatter’s letter (on his own Oireachtas stationery) to the Ceann Comhairle.
It is in this three-page letter, which we first learned about in the Irish Times last Friday, Shatter says he is “sorry to have to write to you about this matter”.
He essentially asks for the removal of references to him from the Commission of Investigation’s terms of reference. If references to Shatter, in his former role as minister for justice, were not removed, the TD writes.
“It will be a direct and over encroachment and interference by Dáil Eireann in judicial proceedings that are presently before the Courts and will be a dangerous and unprecedented encroachment by the Dáil on the functions of the Courts.”
Shatter says he is happy to meet with the Ceann Comhairle to “respond to any questions you may have”.
In the final letter of the correspondence released this evening, dated 17 December, Reddy writes to Gallagher to essentially dismiss Shatter’s concerns.
The letter says that the Government does “not accept your client’s contention that the establishment” of the Commission “would constitute an unlawful or unjustifiable trespass on the current High Court proceedings” or “would interfere with the proper administration of justice”.
It adds that if the Commission is “competent enough to make arrangements to avoid a conflict” between the court proceedings and its own work.
It now remains to be seen whether Shatter will seek to challenge the establishment of the Commission of Investigation through the courts.
Additional reporting by Órla Ryan
Originally published: 3 February, 19.10
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