TÁNAISTE, AND FORMER Minister for Justice, Frances Fitzgerald is under pressure to reveal what she knew about attempts to smear Maurice McCabe by then-Garda Commissioner Nóirín O’Sullivan’s legal team at the O’Higgins Commission.

McCabe was vindicated by that commission last year on issues he’d raised about garda misconduct, but the government is now under fire to disclose what it knew about plans to discredit the whistleblower at that commission.

In a statement this evening, however, Minister Charlie Flanagan said that investigating this very matter is under the remit of the Disclosures Tribunal and that it “should be allowed to do its work”.

What it’s all about

Labour TD Alan Kelly had submitted a number of parliamentary questions to the Department of Justice related to the O’Higgins Commission, which examined garda corruption claims made in part by McCabe.

The O’Higgins Commission would vindicate McCabe in a number of areas in May 2016, but later revelations about false accusations of sexual abuse against the whistleblower led to the establishment of the Disclosures Tribunal earlier this year.

Documents uncovered by RTÉ’s Prime Time back in 2016 showed that Nóirín O’Sullivan’s senior legal counsel Colm Smyth SC told Mr Justice Kevin O’Higgins that he had “instructions from the commissioner” to “challenge the integrity… of Sergeant McCabe”.

On the day of the hearing when Commissioner O’Sullivan was to give evidence, Smyth clarified his remarks and said that his instructions were to “challenge the motivation and credibility of Sergeant McCabe”.

Kelly’s parliamentary questions related to how much the Department of Justice knew of this legal angle being taken at the O’Higgins Commission.

In response, Minister Charlie Flanagan said: “As the deputy will be aware, some aspects of the O’Higgins Commission of Investigation form part of the remit of the Disclosures Tribunal and therefore I am limited in what I can say.

In the circumstances, the department would have had no role in determining the approach to be taken by the Garda Commissioner to the commission in question. Accordingly, there was no question of the department seeking to interfere in any way with, or to have any say in determining, that approach by the Garda Commissioner.

Kelly called the answer “a disgrace” and said that it didn’t answer his question at all.

He said: “It’s a yes or no answer. Were the Department privy to the strategy adopted by the Commissioner or not? If not simply say so. Don’t try and hide behind the Charleton Tribunal.”

Sinn Féin’s justice spokesperson Donnchadh Ó Laoghaire also called for full clarity from the government.

He said: “If it is the case that the Department was aware, and either assented to or approved of such a course of action, then the campaign to undermine the credibility of Garda McCabe goes right to the heart of government.

This is a deeply concerning possibility. The need for the Government to provide clarity on this is obvious and urgent.

What the government is saying

The government is very much taking the line that investigating these contacts is the work of the Tribunal, and will not go beyond that in its statements now.

Speaking to Chris O’Donoghue’s On the Record on Newstalk, Fitzgerald was asked if she knew about the plan to attack McCabe during the O’Higgins Commission.

She said: “Certainly I have never had the slightest interest personally in attacking Maurice McCabe’s character, I met with him and his wife. Just to say, the reason I set up the Tribunal was so that all of these issues, and that particular issue you’ve raised with me, is one that is being examined by the Tribunal, and that commission is the place to examine that.

Look if I start answering questions like that at this point I’m effectively cutting across the work of the Commission, and that’s why that Commission was set up and we’ve an excellent judge, Charleton examining that. I’ve always been clear that whistleblowers need to be respected, listened to and their issues dealt with.

Taoiseach Leo Varadkar, meanwhile, has said looking at the legal angle is something he would put to Minister for Justice Flanagan.

For his part, Flanagan has said that his department had no role in determining the legal approach taken by the Garda Commissioner. He did not say, however, if the department was aware of the stance that would be adopted by O’Sullivan’s legal team.

He said: “Accordingly, there was no question of the Department seeking to interfere in any way with, or to have any say in determining, that approach by the Garda Commissioner. And it should go without saying that it would have been entirely inappropriate for anyone to have sought to interfere in any way with the work of the commission.”

He said that the terms of reference for the Disclosures Tribunal covered this very issue and that it was “unclear” to him why opposition TDs said otherwise.

In response, Alan Kelly said this evening he didn’t need any “childish lectures” from the Minister about the terms of reference of the tribunal.

He said the commissioner has a statutory responsibility to report into the Minister for Justice and that he was seeking to ascertain if “the Garda Commissioner gave the department any notice of the legal strategy she had authorised at O’Higgins”.

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