Fennelly and Irish governance

First published by the Sunday Business Post 6 September 2015

The interim report of the Fennelly Commission is a contemporaneous account of how Irish political power really works.

This is the first time in the history of the state that official sanction has been given to reveal the internal apparatus of the state when the administration under investigation is still in government. The Taoiseach’s decision to give the Garda Commissioner no other option but to retire happened just eighteen months ago.

In the normal course of events, the Irish public is only granted this insight every Christmas when National Archives release Departmental and Cabinet files after the statutory thirty year period. The Mahon and Moriarty Tribunals reported decades after matters under investigation had happened.

The Beef Tribunal is the closest we have come to a contemporaneous investigation of government decisions. It’s 1994 report into decisions taken during the 1987 and 1989 administrations ultimately precipitated the collapse of the 1994 Fianna Fail / Labour coalition.

Unlike the McCracken Tribunal, Fennelly did not postpone publication of his report until after the general election. This is unprecedented territory and the Commission is acutely aware of its unique position. “The Commission pauses at this point,” is how the retired Supreme Court judge has chosen to word the critical aspects of his report.

In order to understand the serious implications of Fennelly, we must first understand the Fine Gael mentality that precipitated the departures of the Garda Commissioner, Justice Minister and the Secretary General of the Department of Justice. “Departures” is an easier word than the political semantics of resignation, retirement or removal.

Law and order is Fine Gael’s Achilles heel. A fundamental belief that because they established the state they must defend the institutions of the state – at all costs. Enda Kenny, as Taoiseach, sees himself as the embodiment of the State.

The Irish justice system was in trouble. Martin Callinan was at the centre of controversy over an eighteen month period. He had to go for the sake of law and order.

As Regina Doherty explained on Prime Time, the visit to the Garda Commissioner’s house by the Secretary General of the Department of Justice was justified because it occurred “against a background”. The Taoiseach’s actions were acceptable because there was a “context,” the Fine Gael TD said.

The Taoiseach used similar language in his interview with Bryan Dobson last Tuesday night. “…but the situation that week was that you were also dealing with issues in respect of the penalty points, the comments made by the then Commissioner at the Public Accounts Committee and this was an extra issue,” he explained.

There was a context. This context justified the Taoiseach’s actions.

The Taoiseach’s instruction to Brian Purcell to convey the “gravity of the matter” to the Commissioner did not breach the law.

If the Taoiseach had directly ordered Callinan to resign, it was in clear violation of Article 28.2 of the Constitution which states that the Government shall meet and act as a collective authority. The Taoiseach does not have authority to act alone and must have Cabinet approval for government decisions. Moreover, the right to procedural fairness and due process under Article 40.3.1 would have been breached. The Taoiseach’s actions were within the letter of the law.

This is the fundamental issue of Irish governance, of the Taoiseach’s character and the bolloxology of how power really works in Ireland.

The elected leader of this country did not honour the spirit of the law. He merely fulfilled legal obligations rather than ethical expectations. The Taoiseach’s behaviour damaged the public trust because he provided a legal justification for his behaviour without any recognition of his moral responsibility for his actions.

The Taoiseach’s actions were at odds with three senior figures of the Irish justice system. The Secretary General of the Department of Justice “was extremely unhappy about what he was being asked to do and said at the meeting that he thought it was wrong.” In his text to Brian Purcell that night, Alan Shatter described the situation as “horrendous.”

Martin Callinan told the Commission that he had not considered retirement from his position up to 24th March 2014. He interpreted the situation he was placed in by the visit of Purcell as leaving him absolutely no option and that he was expected to retire: “I want to be very clear, there was absolutely no options put on the table to me. ” Later in his evidence he said: “I was left in no doubt what I had to do then that evening. I was left in absolutely no doubt.”

This was a polite execution for the purposes of political expediency. Due process was sacrificed for the “context” and an equivocation of language justified actions that were morally suspect. In his Irish Times opinion piece, Shatter condemned a decision making process “made solely for the objective of avoiding or ending controversy.”

Fennelly is an official account of how the Taoiseach ethically, but not legally, overstepped his authority. Although the word governance is not contained within the 280 pages of the report, it is an illustration of how power operates in this administration.

It replicates the decision making process within other recent high profile scandals. The temporary appointment of John McNulty’s to the board of the Irish Museum of Modern Art ahead of his selection to contest the Cultural and Education Panel of the Seanad did not breach any legal code. Nor did the government’s attempt to prove to Eurostat that half of Irish Water’s revenue came from customers. Neither was in the spirit of the law.

These legal justifications for morally suspect behaviour corrodes public trust. Enda Kenny dodged a bullet because the Garda Commissioner did not force the issue. Martin Callinan was bound by an oath he had taken in Templemore. “The Garda Síochána will succeed not by force of arms or numbers, but on their moral authority as servants of the people.”

What moral authority does Enda Kenny have? Where else does he cross the line?

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