Letter from Alan Shatter to An Taoiseach re O’Higgins Commission Report
An Taoiseach Mr Enda Kenny TD
12th May 2016
I write to you in connection with the O’Higgins Commission Report and, in particular, Chapter 13.
The findings of the O’Higgins Report, like the earlier Cooke and Fennelly Reports, have unequivocally established that, when Minister for Justice, I dealt properly and truthfully with Garda related matters that gave rise to substantial controversy in the Spring of 2014 and many false allegations by opposition politicians.Â The conclusions of the O’Higgins Commission totally contradict and are incompatible with the adverse findings made against me in the Guerin Report.Â I am surprised that neither you nor Frances Fitzgerald acknowledged that in your comments yesterday.Â On such a serious issue affecting a former colleague in Government, I expected this would be acknowledged.
You will recall that, prior to my resignation from Government on 7th May 2014, and in my resignation letter, I detailed to you some of my reservations concerning the manner in which the Guerin Inquiry was conducted and the lack of fair procedures.Â Further reservations included Mr Sean Guerin SC prematurely concluding his work without reading and considering what GSOC described as “voluminous documentation” of relevance to his inquiry in their possession.
I again wrote to you on 22nd May 2014 detailing my concerns and reservations which we also discussed on the day of my resignation and again when we met in your office on 12th June 2014.Â These were again detailed by me in a speech in the Dail Chamber on the 19th June 2014 in which I criticised Mr Guerin’s rush to judgement and detailed some of the difficulties that had arisen subsequent to receipt of Sgt McCabes complaints of 23rd January 2012 of which Mr Guerin appeared unaware.
I was disappointed that at no stage were my concerns and reservations responded to or addressed by you nor, as far as I am aware, did you, at any stage, seek to clarify the issues of concern with Mr Guerin.Â You also did not inform me that you knew, before he completed his report, that Mr Guerin did not intend to read relevant GSOC documentation or to meet with GSOC.Â I was taken aback to discover this, some 17 months after my resignation, following myÂ receipt of documentation as a result of an FOI request which was originally refused by your Department and only released after I appealed the refusal to the Information Commissioner. Moreover, my Dail speech on 19thJune 2014 was not responded to or indeed even acknowledged, in any way, by my former Cabinet colleague and successor as Minister for Justice, Frances Fitzgerald.
Opinions expressed and conclusions reached by Sean Guerin SC not only caused my resignation from Cabinet but also had an enormously damaging effect on my good name and reputation both as a politician and as a lawyer. Â Â I assume the Government, as it must, fully accepts the outcome of the O’Higgins Commission.Â Following publication of the O’Higgins Report, I believe it is not tenable and that it would be grossly unfair if the Guerin Report in its original form remained in circulation. The Guerin Report was originally accepted in full by the Government and this was expressly stated on the Dail Record.Â The O’Higgins Report has resulted from a comprehensive sworn statutory investigation in which fair procedures were applied and in which all relevant parties were legally represented, gave evidence on oath, wereÂ available to be and were cross examined, and had the opportunity to make relevant submissions.
I believe that it is reasonable to ask that you, as Taoiseach, correct the Dail record and acknowledge in the Dail that Chapter 13 of the O’Higgins Report clearly and unambiguously concludesÂ that, at all times, I dealt professionally, promptly, appropriately and truthfully with the allegations contained in Sgt McCabe’s letter of 23rd January 2012 and that contrary opinions and conclusions contained in Chapters 19 and 20 of the Guerin Report are in error.Â In the circumstances, as you proposed the appointment of Mr Sean Guerin SC, Â and as your Department was the lead department with regard to the Guerin Inquiry, I am asking that contact be made with Mr Guerin Â requesting that the now discredited adverse conclusions contained in and opinions expressed by him in his Report, concerning both my conduct as Minister and my knowledge of the law in addressing Sgt McCabe’s allegations, be deleted from the Guerin Report and such other necessary amendments as are required be made to his Report.Â I am asking that this be done so that continuing damage is not wrongly caused to my good name and reputation by the content of the Guerin Report.
On the day of my resignation, the 7th May 2014, you mistakenly informed the Dail that when resigning, I “took responsibility” for the “inadequacy of the action” taken by me “in responding to the allegations made by Sgt McCabe” as depicted in the Guerin Report.Â No such acceptance of “responsibility” was either expressed by me or contained in my letter of resignation and it is clear, as a consequence of the O’Higgins Report, that there is no question of the action taken by me being inadequate.Â On this, I believe that it is reasonable that the Dail record should also be corrected and I am asking you to do so.
As you know, as a consequence of no steps of any nature being taken in response to the concerns raised by me, I believed I had no choice but to issue Court proceedings, within the prescribed time limit, challenging the manner in which Mr Guerin carried out his Independent Inquiry.Â Â Unfortunately, those proceedings were unsuccessful in the High Court.Â Of course, at that stage the O’Higgins Commission Report had not been published. Â An appeal against the High Court decision is scheduled to take place on 21st June next in the Court of Appeal.Â Â Whilst I personally have incurredÂ substantial expense funding my own legal costs for these court proceedings, Mr Guerin’s costs are indemnified and may be discharged by the State i.e. taxpayers.Â I hope that you would acknowledge that it is not in the public interest that the State continues to support a defence of conclusions and opinions shown to be in serious error by the O’Higgins Report which has resulted from an independent sworn statutory investigation.Â I believe it is in the public interest, following on from the O’Higgins Report, that these proceedings be rightly resolved without the necessity for a further contested court hearing.Â Â As your Department is the responsible Department in this matter, I believe it is reasonable that I ask that you address this issue.
Finally, independent preliminary inquiries can play a helpful role in investigating an issue of controversy and ascertaining the need or otherwise for a full independent sworn statutory investigation. Â At present, while there are constitutional principles and protections of relevance, there are no statutory provisions which expressly detail the fair procedures to be applied in the conduct of a preliminary inquiry, nor which prescribe the permissible engagement that can take place between the person conducting such inquiry and the designated lead Government Department responsible for the inquiry’s administrative arrangements and expenditure on required personnel.Â There are also no statutory provisions which detail the parameters of any such inquiry nor which prescribe the extent to which it may express conclusions or opinions in relation to individuals or merely frame questions to be better addressed by a Commission of Investigation.Â Speaking in the Dail on 19th June 2014, I drew a distinction between the proper application of fair procedures by Judge Cooke in the conduct of his inquiry into matters relating to GSOC and the different approach taken by Mr Sean Guerin SC.Â Â I believe it is of crucial importance before any future such preliminary independent inquiry may be required, in order to protect the good name and reputation of individuals and to ensure no questions can arise about the proper conduct and integrity of any such inquiry that legislation be enacted to address the issues detailed.Â Â I hope this issue will be addressed by the new Government.
|I would appreciate a substantive response to this letter. I believe transparency is important.Â Both the O’Higgins and Guerin Reports have been published.Â I believe it is in the public interest that there be transparency to the issues raised by me in this letter.Â In the circumstances, I believe it is appropriate that I make this letter public.