JUST AFTER 10am yesterday morning, Enda Kenny arrived into the Science Gallery in Dublin with a back-to-school hair cut and a bounce in his step.
The Taoiseach was launching RTÉ’s Irish language strategy but the report of a commission investigating the circumstances surrounding the retirement of Martin Callinan as Garda Commissioner last year was no doubt on his mind.
He had read the 300-page Fennelly report the night before and was awaiting legal clearance to publish it. But he was pretty confident he was in the clear, saying:
If I was fearful of publication I wouldn’t be in the mood to move to publish as quickly as I can.
News outlets, including this one, subsequently reported Kenny’s belief he had been vindicated and the narrative that he was ‘out of the woods’ and ‘in the clear’ took hold.
Just before 5pm word came that the report’s publication on the government news service website, merrionstreet.ie, was imminent.
At 5.22pm, a statement from Taoiseach Enda Kenny appeared. Its opening paragraphs left the reader in no doubt that Kenny believed he had been cleared by the report.
I welcome the report’s clear and unambiguous finding that the question of removing the former Commissioner from his position was not even discussed.
The Report confirms that the former Commissioner decided to retire, and that he could have decided otherwise. Furthermore, it finds that I had no intention of putting pressure on the former Commissioner to retire.
Seventeen paragraphs down, Kenny noted that the commission concluded that the “immediate catalyst” for Callinan’s decision to retire was the late night visit to his home of the then Department of Justice secretary general Brian Purcell.
A link to the report itself did not appear on the website until quite a few minutes later. When it did, the report took an age to download, and then the website itself crashed. Anyone looking to read the actual Fennelly report before Kenny went on the Six One News would have been hard-pressed.
Kenny was interviewed by Bryan Dobson with the broadcaster probably having not had any sight of the report. Kenny was again able deliver the line that he was in the clear and that in fact he had been the “strongest defender of the commissioner in public and in private” prior to his departure.
Journalist Gavin Sheridan neatly summarised how the governments’s PR machine spun the report in an effort to vindicate the Taoiseach:
But as journalists and others began to delve into the contents of Fennelly it quickly became apparent that no one comes out of this looking good. That includes Enda Kenny.
Whether or not it was right that the Garda Commissioner had to go due to the various controversies that engulfed him prior to his retirement, the simple fact is that it is illegal to sack the garda commissioner without the approval of cabinet.
Kenny did not directly sack the garda commissioner. That much is clear from the report.
But what was is also clear from Fennelly is that Callinan felt he personally had no choice but to retire. This was at a time when the prevailing narrative was that he’d become a problem for government after his “disgusting” remarks in relation to two garda whistleblowers.
It was in this context that a meeting took place at Government Buildings prior to Purcell visiting Callinan to discuss the very serious issue of non-999 calls being recorded at garda stations around the country for decades.
Without any written record, the judge is left to make his own determination as to what the definitive outcome of that meeting was.
Fennelly concludes that both Kenny and Attorney General Máire Whelan gave evidence that the issue of the Taoiseach’s “possible failure to be able to express confidence in the Garda Commissioner” was not one of the concerns to be conveyed by Purcell.
But three other participants – Alan Shatter, Purcell and the Department of the Taoiseach secretary general Martin Fraser – were “in no doubt” that the expression of confidence issue was part of of the message to be conveyed to Callinan, according to the report.
It states that Purcell was “to inform the Commissioner that the matter was to be discussed at Cabinet on the following day and that the Taoiseach, if asked, might not be able to express confidence in the Commissioner”.
This message was “at best vague and, at worst, stark” and the report adds:
A statement to the Commissioner that the head of the Government regards a matter as grave, seeks unspecified views and may not be able to express confidence in the Commissioner carries with it a necessary implication that the position of the Commissioner is at risk.
Callinan’s evidence to the Commission can be best summarised as him having been left in no doubt that he was asked to consider his position. He stated in evidence:
I want to be very clear, there was absolutely no options put on the table to me.
Callinan recalled to the commission that he asked Purcell whether the government had full confidence in him and was not met with a full answer. He recalls being told here were “other issues coming down the line” including “problems in or around the justice system”.
The political fallout from all of this would be damaging for the coalition. Callinan remaining in post with the recordings issue about to become public would, to many observers, make his position unfeasible.
That’s the assessment Kenny himself made upon learning of Callinan’s intention to retire – with a request to postpone it by two to three months. The Taoiseach texted Purcell on the morning of 25 March 2014:
Once decision on early ret is made it simply has to be immediate. Otherwise Cabinet accepts reason for stepping down but allows it to continue. This would simply not be feasible in any circumstance. Hs therefore to be with immediate effect.
Callinan promptly announced his retirement with immediate effect that morning.
As Fennelly concludes he had done so after reaching the “reasonable conclusion” that the message from Purcell the night before was “an indication that he should consider position”.
This morning, there is talk that Callinan could have grounds to take a case of constructive dismissal against the State.
The opposition parties have not given up on the issue. Sinn Féin wants Kenny to resign and Fianna Fáil is planning a motion of no confidence. There is pressure growing for the Dáil to be recalled from its summer recess as early as next week.
Tánaiste Joan Burton has given her backing to the Taoiseach’s assessment of the report’s conclusions.With Labour’s support on the floor it would not be politically wise to pull the plug on government even though the party arguably has grounds to do so.
Leo Varadkar, whose comments kicked off this whole issue, backed his party leader this morning. While the current justice minister Frances Fitzgerald is “absolutely” of the view that Kenny is in the clear. You can expect other ministers to say likewise.
The coalition remains solid and is unlikely to fall, but as he comes to end of his first term as Taoiseach, Kenny is likely to face unprecedented pressure in the coming days and weeks.
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