Justice Department ‘fully complied’ with Charleton tribunal discovery orders

The Department of Justice complied with all discovery orders to hand over information to the Charleton tribunal investigating the smearing of a Garda whistleblower, the department’s acting secretary general has said.

Oonagh McPhillips, who became the department’s most senior official after the resignation of Noel Waters last week, defended the decision of former minister for justice Frances Fitzgerald, who resigned as Tánaiste last month, not to intervene when she learned of a Garda Commissioner’s strategy to discredit a Garda whistleblower.

Ms McPhillips was answering questions at an Oireachtas Joint Committee on Justice and Equality about the department’s knowledge of the legal strategy of former Garda commissioner Noirín O’Sullivan to undermine Garda whistleblower Sgt Maurice McCabe in 2015 at the O’Higgins commission of investigation.

“The department’s view remains that where a justice minister establishes a commission of investigation into alleged wrongdoing on the part of An Garda Siochána, it would be wholly wrong for that Minister to involve themselves in any way in the case or evidence to be presented to that commission by any of the parties,” she said.

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If the commission became aware that the Minister was behaving this way, “this could have very serious consequences,” she added.

The long-running scandal surrounding the handling of Sgt McCabe’s complaints about colleagues has led to the departures of a taoiseach, two ministers for justice, two Garda commissioners and two secretaries general at the Department of Justice over the past three-and-a-half years.

Ms McPhillips said it was “a matter of regret” to her that Taoiseach Leo Varadkar told the Dáil on November 14th and 15th that there was no record showing the-then tánaiste was aware in 2015 of the strategy to undermine Sgt McCabe when department officials discovered the previous week an email showing that she was aware.

“There was a certain amount of confusion, and certainly I regret that the Taoiseach was not more fully informed on these occasions,” she told the Oireachtas committee.

Ms McPhillips said that she was “disappointed” with the Taoiseach’s criticisms of the department as “dysfunctional” and stressed that “below-the-line improvements” had been made at the department.

In response to questions from Fianna Fáil’s justice spokesman, Jim O’Callaghan TD, Ms McPhillips agreed that Ms Fitzgerald could have expressed concerns with department officials about the commissioner’s legal strategy against Sgt McCabe but that the legal advice was that she could not do anything to stop it.

“She could express that view, but the advice would certainly be that there is nothing you could do about it,” she said.

Ms McPhillips was subjected to intense questioning about why the department had not disclosed department emails until last month showing that Ms Fitzgerald was aware of the legal strategy in May and July 2015.

She said that the department only discovered on November 9th, 2017, an email sent on May 15th, 2015, showing the-then minister for justice, Frances Fitzgerald, was aware of then-Garda-commissioner Noirín O’Sullivan’s legal strategy to question Sgt McCabe’s motivation at the O’Higgins commission.

Ms Fitzgerald was not told until November 16th as she was out of the country on a trade mission until then, she said.

She stressed that the department handed over everything to the tribunal that it was asked to.

“The department’s view is that it has complied fully with all discovery orders made by the disclosures tribunal,” Ms McPhillips told the Oireachtas Joint Committee on Justice and Equality.

The discovery orders were received in February, April and September 2017, and those orders were complied with; documentation was complied and sent to the tribunal in February, May and September 2017, she said.

Ms McPhillips said that there was no specific request for the emails of May and July 2015 from the Disclosures Tribunal and that the emails of May 15th, 2015, were only discovered when four parliamentary questions and press queries asked about any meetings that took place on that date.

It was at that point that the diaries and emails were examined, said Ms McPhillips.

“It hadn’t been obvious before that time that that date was in any way significant to us,” she said.

Asked if May 15th was the first time that the department became aware that the Garda Commissioner was going to question the motivation of Sgt McCabe, Ms McPhillips said: “To the very best of my knowledge, yes.”

Ms McPhillips rejected a view expressed publicly in recent weeks that the department “could merely put people’s names into a database and fire all that stuff down to the tribunal”.

She said the department was taking “a totally wide-ranging view” on all information at the tribunal relating to the McCabe allegations and to “land it down to Dublin Castle,” would yield “very many thousands of documents” and that would not help the tribunal.

John O’Callaghan, assistant secretary at the department, said there was “no general, widespread trawl of documents” throughout the department initially for records sought by the tribunal. “I am not sure it was actually considered,” he said.

There has in the last few weeks been “an electronic trawl” of tens of thousands of emails.

Independents4Change TD Clare Daly said that it was “shocking” and “unbelievable” that there was not further discussion about the Garda’s efforts to discredit Sgt McCabe after the handling of the allegations he had raised had already in May 2015 cost the jobs of a minister for justice and a Garda commissioner.

“We are human beings, and this was an email two-and-a-half years ago - which was for information and which the two people in the conversation agreed - and the minister clearly understood that she didn’t have a role in relation to,” Ms McPhillips said.