Department of Justice may sustain further damage, ex-minister says

The latest convulsions caused by the ongoing McCabe affair may further damage the Department of Justice, according to former minister for justice Dermot Ahern.

The department has been frequently criticised for having a damaging propensity for secrecy that arises from its role in State security, and being ineffective in its stewardship of the police.

However, others who have worked there dispute this and say it is only more recently that matters in the department have shown a tendency to go awry.

The McCabe controversy led to the resignation of former secretary-general Brian Purcell in 2014 and earlier this week his successor, Noel Waters – who was appointed on a permanent basis only in October 2016. His decision to bring forward his retirement and step down with immediate effect was announced in the wake of strong criticism of the department in the Dáil by the Taoiseach, Leo Varadkar.

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A senior official in the department has described the atmosphere in the department this week as “feverish”, “white hot” and “very difficult”.

The department’s press office was asked this morning who was now in charge and had not come back with a reply by this evening.

It is presumed that the deputy secretary-general, Oonagh McPhilips, is in charge.

Key institution

The department is one of the State’s key institutions, responsible for policing and security, the courts service, immigration and a host of other important matters. Among the bodies it oversees are An Garda Síochána, the Human Rights Commission, the Insolvency Service of Ireland, the Legal Aid Board, the Office of the Data Protection Commissioner, the prison and courts services and the Property Registration Authority.

It has a major and ongoing role in civil law reform and has in recent times had to deal with controversial and politically sensitive legislation to do with the judicial appointments process. “It has a capacity problem,” said one former figure with the department.

The difficulties of running what is a busy and demanding department that has to deal constantly with security and other crises was already apparent, according to Ahern, before this latest crisis.

It was already proving a disincentive for those who might be qualified for the top role in putting their names forward. The recent experiences of the department’s secretaries-general could well further put people off going for the top job, he said.

That would add to the difficulties of a department which Varadkar described on Tuesday as “dysfunctional”.

The need for secrecy in particularly sensitive areas has not been restricted to those areas. It permeates much of the department's remit and has become part of its DNA

The Toland group, which former minister for justice Frances Fitzgerald appointed in 2014, reported that in its view the department's staff were to be commended for their competence and attitude but that the culture of the department was "closed and unnecessarily secretive".

The closed, secretive and silo culture of the department had inhibited its capacity to question and to challenge, the report said.

“The need for secrecy in particularly sensitive areas has not been restricted to those areas. It permeates much of the department’s remit and has become part of its DNA,” the report said.

Poor management practices at the department included a “lack of cohesive leadership” , no clear ownership of issues, and “poor political antennae for issues with serious potential impact”.

Political violence

A number of people who formerly worked in the department at a senior level have said that its culture, and in particular its relationship with An Garda Síochána, has to be seen in the context of the political violence of the 1970s, 1980s and early 1990s.

“There is an esprit de corps that is different from all other departments. They would see themselves and the Garda as the ones that stood full square behind the State’s democratic institutions when they were under threat.”

This aspect of the department’s culture is probably exacerbated by the fact that people who join the department tend to remain there for the duration of their careers to a greater extent than is the case in most other departments.

The violence that erupted in the late 1960s has undoubtedly had its effect on the department and many of the policies it is responsible for.

At a recent human rights conference, prison policy expert Prof Mary Rogan, of Trinity College Dublin, in a review of prison policy since the foundation of the State, outlined how a tendency of the department to introduce more progressive policy in the 1960s was shut down after the eruption of political violence, and has only in more recent years begun to be explored again.

In the view of the Toland group, “there is a deferential relationship with An Garda Síochána with a lack of proper strategic accountability being brought to bear upon them by the department”.

However, Richard Moore, who spent three years with the department as press officer for 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.”

‘No silo mentality’

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.

A complicating factor in Fitzgerald's relationship with former Garda commissioner Nóirín O'Sullivan, may have been a view at the highest levels within Fine Gael that it could not have a second Garda commissioner resigning, following the resignation of Martin Callinan in March 2014, according to a number of sources.

The picture painted by the Toland report is of a department that was given additional duties over the previous years while also undergoing cutbacks, and without management structures being reformed to reflect the new demands on its staff.

In so far as is humanly possible, this department has sought at all times to act appropriately, upholding the law and the institutions of State

However, it 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”.

Ahern is strongly of the view that it would be best not to break up the department into a home affairs department and one focused on other justice issues, as has been widely suggested.

In his resignation notice to staff on Tuesday, Waters said it had been a “particularly difficult time for the department” which had been subject to “a barrage of unwarranted criticism in recent days and most particularly today”.

“In so far as is humanly possible, this department has sought at all times to act appropriately, upholding the law and the institutions of State,” he said.

Many of the claims being made in the media and in the Dáil about the department “are not true”.