Independents 4 Change TD Clare Daly spoke to Sean O’Rourke in light of Noirin O’Sullivan’s resignation.
From the discussion…
Clare Daly: “I think there’s been an attempt here to kind of change the narrative to sort of portray the former commissioner as a sort of a victim. Too many people asking questions, she couldn’t get on with the job – the reason why there were so many people asking questions is that answers weren’t being given. Transparency and accountability wasn’t being delivered.
“And the sad fact is that there was open warfare inside the hierarchy of An Garda Siochana, between the civilian heads and between most of the senior garda management. And sadly, we’ve had a roadmap for how to deliver a modern police service, based on really comprehensive reports that were done by the Garda Inspectorate in previous years which all we need to do is implement them.
“And the problem being that the people at the top of An Garda Siocahana come from the old guard and are not best equipped to deal with that type of change that is necessary to herald in a new type of Garda management.”
Sean O’Rourke: “So you’re talking about, not just a new commissioner but a new top layer of management are you?”
Daly: “I think that’s absolutely necessary and we would be very concerned with some of the recent promotions by the Policing Authority for people who we know have been the subject of serious complaints and investigations by GSOC and Garda management, in example, for harassment of whistleblowers, have actually ended up on the promotion list. And…”
O’Rourke: “So the Policing Authority has to go as well, does it?”
Daly: “No, the Policing Authority has to be…”
O’Rourke: “If they’re promoting these people…”
Daly: “What this Government didn’t want it to be – a fully independent body. Let’s remember the personnel of the present Policing Authority were effectively hand-picked by the last government, there wasn’t open recruitment and selection for that. And their hands have been tied and they’ve allowed their hands to be tied even further. I made the example earlier and what happened in Scotland and other jurisdictions, they seem to manage it perfectly well.
“Where a garda commissioner or a chief constable, whatever they’re called, are actually held to account by a proper policing authority. We haven’t go that here. We’ve got a halfway house and the legislation has been there to deal with it.”
Readers may recall the recent controversy over Saudi Arabia’s inclusion in the UN Commission on the Status of Women.
And the Minister for Foreign Affairs Charlie Flanagan refusing to say if Ireland voted for or against this inclusion.
In the Dáil.
Independents 4 Change TD Clare Daly suggested that Ireland did vote for Saudi Arabia’s inclusion and that it did so because of the arms export licences that Ireland issues to Saudi Arabia.
Clare Daly: “It is clear, despite that it has not been publicly acknowledged by Government, that Ireland voted for Saudi Arabia to be part of the UN Commission on the Status of Women. The question beggared belief with many people, given Saudi Arabia’s record on women’s rights and human rights.
“Maybe the answer lies in the question in front of the Minister about the massive spike in the licences issued – documented in the report published by the Department of Jobs, Enterprise and Innovation about arms exports – in 2015 and the first six months of 2016 to the Saudi Arabian alliance, which has been involved in the bombardment of Yemen.
“What is going on in a neutral country, particularly when all of the weapons involved are in category ML5? It includes very serious activities, such as bombing computers, gun-laying equipment, weapon control systems and so on.”
Mary Mitchell O’Connor: “The EU has a range of sanctions in place in respect of countries engaged in conflicts. All licence applications are considered having regard to these measures. Sanctions can include arms embargoes and various restrictive measures including prohibitions on the provision of targeted goods and services. My Department observes all arms embargoes and trade sanctions when considering export licence applications. There are no EU sanctions in place in respect of Saudi Arabia.
“All export licence applications, whether for dual-use or military goods, are subject to rigorous scrutiny, and are considered in the light of the spirit and objectives of the 2008 EU Common Position on Arms Exports. My officials are in regular contact with the Department of Foreign Affairs and Trade on export licensing issues. They consult with that Department in respect of all military export licence applications. My officials seek observations on any foreign policy concerns that may arise in respect of a proposed export. Such factors are subject to review in the light of developments in a given region.
“Any observations which may arise from this examination are considered in the final assessment of any licence application. My Department may refuse an export licence, following consultation with the Department of Foreign Affairs and Trade and other EU and non-EU export licensing authorities, as appropriate. As indicated in the annual report, my Department issued one military export licence with Saudi Arabia as the ultimate end-user. This was in 2015 in respect of category ML5 military products, which includes electronic control devices and components.
Daly: “There has been no movement since I asked the Minister the question last time, except for the 1,200 dead Yemeni children, the tens of thousands injured and the 4 million suffering from acute malnutrition.
“I asked the Minister about the EU Common Position on Arms Exports, which prevents sale of arms to a country if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law. We know that the British Parliament, on a cross-party basis, has recommended the suspension of arms exports to Saudi Arabia, until a UN-led investigation into violations of human rights is concluded.
“The UK is not even a neutral country. We are.
“We should be leading on these matters, particularly when it is also the case that we should be careful about selling arms to countries with links to terrorism. We know from Ms Hillary Clinton’s emails, no less, that Saudi Arabia arms ISIS. It is ridiculous that we continue to issue arms export licences to this country which is involved in war crimes. It is not good enough.
“I did not ask the Minister about an arms embargo and do not want to hear about it. Why, against that backdrop, would we not institute a presumption of denial policy, which could be brought in overnight and put us to the forefront on these very important human rights issues?
Mitchell O’Connor: “The Deputy mentioned export licences. I said one military export licence was issued. We do not export arms. The key consideration in dealing with military export licence applications is to establish if there are concerns with the end-user or proposed end-use. This process may include consultation, as I outlined earlier.
“My Department consults with the Department of Foreign Affairs and Trade. In addition, end-user certificates are always required as a further control measure. End-user certificates provide information on the proposed transaction. They certify that the company will be the final recipient of the goods being exported and include an undertaking that the goods will not be used in connection with weapons of mass destruction.
“Individual licences are valid for the export of a specific quantity of goods to a specific end-user within a 12-month period. A new application must be made for any exports above that provided for on the original export licence. All new and repeat licence applications are subject to the full export licensing scrutiny process. All licence applications are considered in the spirit and objectives of the 2008 EU Common Position on Arms Exports.”
Daly: “Does the Minister presume that it is a coincidence that we have gone from zero arms sales to Qatar and declining arms sales to the UAE to a significant uptake in both of those figures in 2015? All of the arms exports to Saudi Arabia were in the category of ML5. That category includes weapon sites, bombing computers, gun-laying equipment and weapon control systems.
“These are not incidental bits of hardware. The issue of the destination and final end use actually makes no difference to our obligations under the EU common position, which states that if there is a risk of this military technology or equipment being used in the violation of human rights, then they should not be exported. That is the question that is being asked.
“It does not really matter if the weapon components stop off in another country on their way to Qatar. Our obligations in that instance are the same. I ask the Minister to look at the issue of a presumption of denial within the Department whereby, even as an interim measure, we could take a step and institute overnight that if anybody from these countries applies for a licence to export arms to Saudi Arabia, they can be refused. The Government has not dealt with that. I must ask the Minister about it. We are talking about lives, war crimes and a violation of human rights.
Mitchell O’Connor: “The information I have in front of me outlines that there was one military export with Saudi Arabia as its final end user destination. These were not for the production of arms. Sometimes they are components for helicopters and Jeeps. I do not think the Deputy can jump to the conclusion that we are exporting arms or components for arms. I do not think that the Deputy can do that at all…”
Daly: “That classification is there.”
Mitchell O’Connor: “…because our Department and the Department of Foreign Affairs and Trade take an extreme view and make sure that the applicants are denied if there are any questions to be asked in that instance.”
Sinn Féin’s motion to ensure the new National Maternity Hospital has “legally-guaranteed independence” from all non-medical influence in its clinical operations was carried.
During a debate on the motion, Independents 4 Change TD Clare Daly spoke about maternal deaths in Ireland, and the lack of inquests for the same.
“Regardless of the justifiable public outcry over the handling of the new national maternity hospital and the prospective ownership of that facility being given to a religious order, this motion is incredibly timely. There is no doubt that our maternity services are in desperate need of reform. It is something that we need to discuss. The best response that the Government can come up with is that we compare favourably to other countries. Do we, and if so, which countries? I would not like to be compared to them.
Let us look at some of the facts. Between 2011 and 2013 there were 27 maternal deaths. These were otherwise healthy women who went in and lost their lives in childbirth or shortly afterwards. There were inquests in only three of those cases.
In 2014, there were 365 reported cases of severe maternal morbidity, but our data is incomplete because not all of the maternity hospitals participated in that.
Between 2007 and 2015 the HSE incurred a staggering €66million in legal fees arising from maternity cases involving serious injury or death to women or babies. During the same period the HSE, through the State claims agency, paid out an even more staggering €282 million in damages in maternity cases. That is 116 times more paid out in legal settlements and fees than the extra €3 million that is being given to the new national maternity strategy. Unless that culture of litigation, denial, lack of accountability and lack of oversight is dealt with our problems will continue.
There is no doubt that one of the key reasons for our problems is the significant under-staffing level of midwives and doctors across the State. Meanwhile, reports and reviews into adverse incidents are either not made available publically or they are badly delayed. The review of adverse incidents in Portiuncula hospital, for example, was supposed to be available by mid-2015. We still do not have it.
We did discover last week, however, that the hospital was carrying out a secretive review of care, with a doctor even ignoring advice and saying that he did not see the reason why there should be any review at all. We have to deal with these issues, because our maternity services are consistently running at sub-optimal levels, which is undoubtedly leading to trauma for women and their families and to catastrophic outcomes because of the lack of accountability and the completely inadequate and non-binding HSE open disclosure policy.
What we need is a statutory duty of candour in order to deal with these cases. It is more than urgent. It is one of the reasons why I moved the Coroners Bill 2015 and why that is so critically needed, yet we still do not know whether the Government has passed a money message even though the Committee for Justice agreed more than six months ago that it would go to committee stage next week.
We need accountability and openness if our services are going to improve. The widowers who lost their wives and the mothers of their children can testify to the failures of our maternity services and the need to change.
We know from the eight inquests held between 2007 and 2015 into the deaths of women in our maternity services that vital information was withheld. They were often not privy to internal investigations and reports until the HSE was ordered to produce them in public hearings by the Coroner’s offices.
Although hospitals and the HSE indicated that they would change procedures and protocols, those were not implemented and carried through. That is utterly devastating for those families.
It is not an exaggeration to say that if the HSE recommendations issued on foot of the tragic death and inquest into the death of Tanya McCabe had been made enforceable national policy then Savita Halappanavar may not have died.
If the inquest into Dhara Kivlehan’s death had not been delayed for four years – she died in 2010 and the inquest was in 2014 – then Sally Rowlette, who died in 2013 in the same hospital of the same condition, leaving four children, may not have died. These are very urgent issues that need to be addressed. It shows systemic failures and a lack of openness in our system.
We know that there are countries across the EU which have much better health outcomes than we have. We need proper audit and genuine open disclosure. We have to have automatic inquests into maternal deaths in order for maternity services to improve.
It is unforgivable that in this day and age that fetal abnormality scans are not available as a matter of course to women. The Minister has told us over and over again that all hospital groups offer such scans, but the reality is that the scans have to be implemented by doctors. Women outside of major centres have to travel, and the consequence is that abnormalities are not always picked up. It is not good enough.
I welcome the motion, but it does not go far enough. That is not a criticism, it is a point of observation. The national maternity strategy is far from flawless. The language in it is feeble. We talk about woman-led care, when there has been a deliberate decision not to have midwifery-led care because there is some seemingly mythical and highly polarised debate out there about midwifery care. I reject that. I would say that it is far more likely that expensive private obstetric practices are the ones who are worried about midwives. No one else is.
Midwifery-led care is the way forward. In Scotland, they have 18 free-standing or along side midwifery-led units serving a population the same as Ireland, yet we have two pilot schemes in Cavan and Drogheda.
There has not been a single sod turned to provide even one midwifery-led unit in Ireland, despite the national maternity strategy making promises on the issue over 14 months ago. The Scottish national maternity strategy provides that every woman will have continuity of care provided by a primary midwife who will provide the majority of her antenatal, intrapartum and postnatal care. The input of an obstetrician is an addition, but the provision of care is centred on the midwife, which is best for the State, health outcomes for women and the public purse.
The national maternity strategy is non-statutory, which is a huge problem. It is only the third national document on national maternity services since the early 1950s, but because it is non-statutory, it is not binding. We can refer to A Vision for Change which is a lovely vision, but it does not tally with the reality.
The Government has one month in which to look at the maternity hospital and we will see what happens, but St. Vincent’s University Hospital was built with public money. Is it not ironic that, in 1972, Noel Browne was questioning the funnelling of public money and cash into a hospital for the Sisters of Mercy? There should be no debate on this issue. It has to be sorted out as it is a public hospital which was built with public money and should be publicly owned.
Further to the near one million false breath test figures and 14,700 wrongful convictions…
And Taoiseach Enda Kenny telling the Dáil yesterday that the Government has agreed to an external investigation into the matters – the details of which have yet to be decided.
This external investigation will be on top of an internal Garda investigation and one carried out by the Policing Authority.
Assistant Commissioner Michael Finn, who held a press conference on the matter last week, said Superintendent Pat Murray from Athlone had been appointed to carry out the “fact finding” internal investigation.
Further to this…
On December 15, 2015, during a Dáil debate, in the presence of the Minister for Justice Frances Fitzgerald, on the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015…
Independents 4 Change TD Clare Daly said:
“…the current treatment of whistleblowers is absolutely dire. Subsequently, the position of Garda Keith Harrison has been vindicated by the State pulling out of a High Court action it had taken against him at enormous personal and emotional cost, not to mind the cost to the taxpayer of a ludicrous, vindictive action. It is worth saying that the judge in that case was the senior counsel during the Morris tribunal. It is quite clear that from his stance, nothing has really changed in the sense that he awarded full costs to Garda Harrison.
“This is important because why else are we here discussing a policing authority? It is to have independent scrutiny and accountability of the gardaí.”
“It would be entirely appropriate for the Minister to comment on the Garda Inspectorate’s report which has obviously shocked people. It has also vindicated everything we have said – that nothing has changed inside the ranks of the Garda Síochána, except the faces at the top. I am surprised that people have not called for the current Garda Commissioner to resign because she is standing over a situation that is at least as bad, if not worse, than what the former Commissioner Callanan stood over. It is worse because the scale of the knowledge that is in the public domain has not been addressed.”
“The previous Garda Inspectorate’s report gave a damning account of gardaí massaging the crime figures, for example. That resulted in the analysis of crime figures having to be withdrawn for a period. It is a very serious matter.
We know for a fact that the massaging of the figures is still continuing. In recent weeks, in Superintendent Pat Murray’s station in the midlands and in Athlone, we have seen direct evidence of at least eight cases where crimes were written down so that the original crime was reclassified as a more minor matter.
There is clear evidence of massaging the figures – for example, changing burglaries to criminal damage, which is reclassification.”
In addition, during the same debate, Independents 4 Change TD Mick Wallace said:
“First, the Minister asked for proof of what Deputy Daly actually said. Tomorrow morning, I will give the Minister proof of district officer, Superintendent Pat Murray, reclassifying crime figures. This is an individual who has harassed and bullied a Garda whistleblower to an awful degree for a long time.”
You may recall how, yesterday, the Minister for Disabilities Finian McGrath withdrew the proposed terms and conditions of a commission of investigation into ‘Grace’ and the alleged abuse she suffered at the home for 20 years.
His decision to remove them came immediately after stinging criticism of the proposed terms and conditions by Fine Gael TD John Deasy, from Waterford, and Fianna Fáil TD John McGuinness.
Mr Deasy alleged that there was a cover-up by the HSE, saying: ‘this was a concerted and organised attempt to hide information and conceal the truth by a clique of HSE managers‘.
Mr McGuinness recounted the experiences of other alleged victims of abuse who lived at the foster home and said if Mr McGrath’s terms and conditions didn’t include the 46 other people who stayed at the home, the State would be “heaping further abuse” on the families affected.
Specifically, Mr McGuinness said, before Grace, a 12-year-old girl was taken out of the home – after the school she attended told the girl’s mother she would attend school bruised, battered and beaten. Mr McGuinness said the girl’s mother made a complaint to the South Eastern Health Board in 1992 but was “… told to shut up. She was told not to repeat those stories. And she was threatened legally”.
This morning, the Dáil unanimously agreed expanded terms of reference which state the 46 other cases will be examined in a second module of the commission of investigation.
But it’s being reported that families of the 46 other cases and the whistleblowers remain unhappy with the revised terms.
“The whistleblowers added that while the revised terms state that phase two will undertake an investigation of the recommendations in the report of Conor Dignam SC, the terms omit Mr Dignam’s recommendation to look at “allegations of cover up”. This, they say, is of serious concern.”
Further to this…
Independents 4 Change TD Clare Daly TD spoke about the matter in the Dáil this morning.
And she raised concerns about the connection between law firm Arthur Cox, the HSE and Resilience Ireland, which last week published a 2015 report it was commissioned to do, by the HSE, on the Grace case.
Ms Daly said:
“Minister, I have to say, the entire manner in which this has been addressed has been utterly shambolic and wholly unacceptable and I really hope that this does not come back to bite us.
“And the reason why it is particularly important that we get things right in this case is that we know that the backdrop is, at best, I suppose, economical-with-the-truth information being given, but, at worst, deliberate misinformation around these issues in previous attempts to resolve them so forgive us if we’ve trust issues where the HSE are concerned: we think they are legitimate.”
“Now, yesterday, we went into the meeting with yourself. We wanted to raise the issue of the draft order – the statutory instrument upon which the terms of reference were based. The first response we got was, ‘well, sure, God, nobody else raised that’. We want to address the terms of reference. We had to commission legal opinion from Eame’s solicitors to explain why the order had to be changed and that the terms of reference could be ultra vires if you didn’t do that.”
“We then went on to actually submit changes to the terms of reference – none of which were included I might add.”
“Now, no doubt, minister, you will argue that the order and the terms of reference, in the manner in which they have been changed, will allow us to address all of the issues that we have raised and that is possibly the case. And I seriously hope that that is the case.”
“But I found it ironic this morning that one of the amendments that we specifically had posed was the problem that was highlighted by the PAC [public accounts committee] – the fact that earlier attempts by people to get to the truth, including Government ministers and Oireachtas committees were deliberately thwarted by persons or persons unknown in the HSE. It’s an absolute fact.”
“In terms of the information put out, that the gardai were blocking publication of the reports – not even allowing ministers see them – we know it now that that’s not true.”
“We know in the case that I raised with Minister [Leo] Varadkar about a vulnerable person remaining in that facility up to 2015, the minister efficiently asked: are we sending anybody to this? And the answer, very cleverly, he got was: don’t be worrying, Minister. We’re not sending anybody, it might be a private placement but that’s sorted.”
“It wasn’t sorted. So they didn’t actually care about the truth or the person at the centre of it; it was all about covering up for the organisation. And against the backdrop of the Devine Report, which had been hugely discredited, the Resilience Ireland report terms of reference drafted by Arthur Cox who were the legal team that represented the HSE in the Grace case. You couldn’t make this up. Heads have to roll over this.
“I really hope that the changes have got it right and that we be proven wrong on this but there’s a lot hanging on it.”
Readers may recall how the terms of reference of Justice Peter Charleton’s commission of investigation into allegations of a smear campaign against Sgt Maurice McCabe were published earlier this week.
And that one of the terms of reference calls for the investigation to find out if “Commissioner [Noirin] O’Sullivan, using briefing material prepared in Garda headquarters, planned and orchestrated broadcasts on RTE on the 9th of May, 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sgt McCabe was branded a liar and irresponsible”.
This was in reference to an interview between RTE journalist Fran McNulty and RTE’s Crime Correspondent Paul Reynolds on Morning Ireland on the morning of Monday, May 9, 2016 – about the then as yet unpublished O’Higgins report.
The O’Higgins report wasn’t published until Tuesday, May 11, 2016.
Mr Reade also asked Ms Daly about what she said in the Dáil yesterday, concerning the inclusion of this report in the terms of reference.
Ms Daly told the Dáil yesterday:
I welcome some of the other terms of reference. I am delighted to see RTE included, because I actually made a complaint about that broadcast. RTE wrote back to me and gave out about the personal nature of my complaints and their hostile tone. It claimed they were without foundation and would be defamatory if I repeated them to a third party.
During the LMFM interview…
Michael Reade: “You told the Dáil yesterday that you made a complaint about the broadcast to RTE. RTE wrote back to you and gave out about the personal nature of your complaints and the hostile tone and I know that because I saw you saying that on RTE News last night. But that’s where the report stopped. And what I didn’t see on the news was what you went on to say, which was that, RTE claimed, that what you were saying was without foundation and would be defamatory if you repeated it to a third party. Was RTE threatening to sue you?”
Clare Daly: “No, I don’t think so. I think they were objecting strongly or the person from RTE who wrote it, like, was saying that, you know, if I was to repeat what I said in the complaint to a third party, it might be construed as defamatory which was just utterly ridiculous, as far as I was concerned. It was in the context of the news report and coverage and the complaint had been about the coverage by Paul Reynolds and, basically, the person who wrote back from RTE was making that remark to me, in the context of defending Paul Reynolds, telling me what a wonderful journalist he was and how he knew him well and…”
Reade: “But to say it’s defamatory,..”
Daly: “Yeah, I know.”
Reade: “…is that not suggesting you were making libellous statements which means they could choose to sue you?”
Daly: “Yeah, I mean, look it, I thought the choice of words was incredible and, as I was saying in the Dail, I was really glad that Justice O’Neill had included that coverage because a lot of people took exception to it, it was incredibly one-sided and it gave a very inaccurate account of what was actually in the O’Higgins’ report which is why we put in the complaint at the time…”
You may recall a post from last week concerning Garda whistleblower Keith Harrison.
It included excerpts from a letter sent by Mr Harrison’s solicitors to Garda Commissioner Nóirín O’Sullivan on May 20, 2016, outlining how he had been subjected to harassment and continued attempts to smear his reputation and undermine his credibility.
It was one of 14 such letters sent to Ms O’Sullivan by Garda Harrison’s solicitors.
Last October, during a meeting of the committee on justice and equality, Independents 4 Change TD Clare Daly repeatedly asked Ms O’Sullivan if she was privy to any information about allegations of mistreatment of Garda whistleblowers and Ms O’Sullivan repeatedly replied:
“I’m not privy to, nor did I approve, nor would I condone any campaign of harassment…”
Further to this…
Last night, Ms Daly returned to the matter of Garda whistleblowers and what Ms O’Sullivan knew, and when, in the Dáil. She told how she’s been in contact with 10 Garda whistleblowers – all of whom, bar one, are currently out sick.
Ms Daly was speaking during a debate on a report on Garda oversight and accountability compiled by the Joint Oireachtas Committee on Justice and Equality.
“This report is not just aspirational, containing ideas we have circulated for the craic; these are serious observations, made in part on the basis of the engagement we had with the oversight bodies and the Commissioner and her team and in part from our experience over recent times. In that context, I welcome the fact that the Minister will take on board some of the committee’s recommendations.
“That is a very welcome development. Without in any way being churlish, I believe it is an awful pity some of the recommendations were not taken on board previously.
“It is a matter of record that many of the recommendations contained in the report and the Minister’s Bill were made by us a number of years ago during the debate on the first GSOC and Policing Authority Bills. I am not saying this to score points, but people have suffered as a result of some of these provisions not being available during the two years since the most recent GSOC Bill was implemented…
“…We must be realistic about why the concept of oversight has gained popular currency and is being talked about by the dogs on the street. There is just one reason, that being, the heroic stance of a number of Garda whistleblowers who shed a light on an insular blue wall of silence, an organisation in which, contrary to what the Commissioner says, dissent was deemed to be disloyalty and punished accordingly. The order of the day was rats, death threats and serious intimidation of people who tried to do the right thing.
“The public perception of what a whistleblower is has been stood on its head. Now, being a whistleblower is identified as a position to be lauded, and one that makes a valuable contribution to improving the situation for all gardaí and members of society. There are many good gardaí and, for some time, they have believed that the situation will change. They stepped forward accordingly to join the ranks of the whistleblowers and improve matters.
“We have engaged with ten serving members of An Garda Síochána who have made protected disclosures of one sort or another. Under a change in the previous legislation, GSOC is now the confidential recipient and the vehicle through which gardaí make complaints. That service needs to be beefed up radically because GSOC does not have the time or resources to provide it adequately. It does not have the legislative power to compel Garda co-operation that it needs.
“Many cases have stalled because of delays in the Garda handing over material that GSOC needs to conduct its investigations. This non-co-operation continues today. It can be covered up as administrative delays and so on, but it impacts on the work being done.
“A number of the whistleblower cases in question are in the public domain, but others whose cases are with GSOC – in the instance of Keith Harrison, for more than two years – have had relatively limited meaningful engagement with GSOC because of delays with documentation and so on. In Nicky Keogh’s case, the GSOC investigation has practically concluded and disciplinary recommendations have been made, but the Garda has not agreed to GSOC’s involvement.
“These serious matters are ongoing. One must ask, if the situation is improving, why all these gardaí bar one are out sick. All have made allegations about bullying and harassment since coming forward, which is in direct contrast with the public statements of the Commissioner that she does not know of any harassment.
“We know that she has been directly informed of that harassment, as has the Minister. Most recently, serious allegations were made, and were widely covered in the provincial media, during an assault case after Christmas. In open court, evidence was produced of doctored witness statements. The people involved in the assault were also involved in a case in which a garda had been accused of involvement in the drug trade and so on. Criminal prosecutions are being impacted.
“The situation cannot be right if so many people are out sick. The case of the only garda who made a protected disclosure but who is not out sick is appalling. It involves a family law case. He received information to the effect that the judge, who was a family friend of his former wife, had held a meeting before the court case and then granted a protection order against him. He then made a complaint to the Garda. Not only was his complaint not investigated, but the senior garda involved initiated criminal proceedings against him for interfering with the judicial process when the circumstances clearly did not meet the criteria.
“That person, albeit a member of the Garda, was a victim, only to be revictimised by what the senior garda did. To add insult to injury for him and a number of other Garda whistleblowers, the very man who did that was brought by the Commissioner to attend our committee’s hearings into oversight as a witness for An Garda Síochána. Confidence among serving members is not developed if this type of behaviour is happening.
“The Minister will see from the committee’s recommendations that we want the Policing Authority to have more control over the Commissioner. This is not a new idea.”
The proposed Judicial Appointments Commission Bill 2016 was discussed at a meeting of the Joint Committee on Justice and Equality.
The 11-member Judicial Appointments Commission is to replace the 12-member Judicial Appointments Advisory Board.
The 11 members will include the Chief Justice, the president of the Court of Appeal or the High Court – as decided between them – the Attorney General, a serving barrister nominated by the Bar Council, a serving solicitor nominated by the Law Society, and six lay members.
The Irish Times reported yesterday that Chief Justice Susan Denham, who is due to retire in August, met with the Taoiseach Enda Kenny and Minister for Justice Frances Fitzgerald before Christmas – and then wrote to them earlier this month – to express her concerns about the commission.
In her letter to the Taoiseach this month, the Chief Justice is understood to have voiced strong reservations about the proposed lay majority, how the lay members of the commission will be selected, and about the fact the commission will include the Chief Justice, but not be chaired by the State’s most senior judge.
Further to this..
During the committee meeting on Wednesday, Independents 4 Change TD Clare Daly spoke about the proposed bill and mentioned a case, she felt, involved “a complete perversion of the course of justice” by a judge.
What Ms Daly said:
“We are all very new to this process. It is a different scenario for everyone here.
I do not want to repeat points that have already been made but we had tabled a number of amendments to [Fianna Fail] Deputy [Jim] O’Callaghan’s Bill.
Indeed, we had amended our own amendments before we got to the committee and events developed. In advance of today’s meeting, we prepared a detailed critique of the Minister’s heads of Bill but it is possibly too detailed in the context of where we are at now. Therefore, I will give my initial reaction to some of the broader points raised. I will probably forget lots but perhaps we will be able to go into more detail later.
First, on the membership of the commission, specifically the lay chairperson and lay majority, this is something that we wanted at the time of the publication of Deputy O’Callaghan’s Bill. We are happy to see that included in the Government’s general scheme.
It is important to say that this is not about “one in the eye” of the Judiciary or the legal profession. It is about a particular view of the judiciary. People with a legal background, very understandably, see appointment to the bench as a career progression and as something that should be controlled by experts.
However, for ordinary people, the appointment of judges is a social matter. They see judges as people who work for society, not for the legal profession, and therefore it makes sense for judges to be appointed by members of the society they serve and for them to be allied to the needs of society.
It is a difference of view and balance is achieved by equal representation on the appointments commission. The best way forward is to give both sides their due, so to speak. While it is unusual to have an even mix of lay people and legal experts on an appointments commission, it is interesting to note that when Scotland reviewed its procedures before introducing primary legislation, one of the points made was that a particular strength of the system was its even mix.
One of the problems I have is the inclusion of the Attorney General on the commission. I do not see any point in that at all. The Attorney General is a political appointee and at least in the early life of the commission, two of the judicial members will have been appointed under a political patronage system.
While I am not in any way casting aspersions on their integrity or their fitness for office, nonetheless they came into their positions in that way. I do not see the purpose of including the Attorney General on the commission. I do not see what insights or skills he or she might add and perhaps an additional member of the judiciary would be a better option.
There are points to be made about the legal members being nominated by the Bar Council and the Law Society. We would certainly have questions about that. Obviously, it is no secret that issues have arisen regarding senior members of the Law Society. There have been many cases of litigation and High Court proceedings in this regard.
We absolutely agree that the idea of merit should extend to the appointment of lay members of the commission but why would it not also extend to the appointment of the legal members? The latter should not be appointed just because they are in with the “in crowd” at the Law Society or the Bar Council or because it is their chance or turn. I do not like that.
We would prefer to see a system involving an open, public competition, with some minimum qualification requirements, like years in practice or some such. That could possibly be run by the Public Appointments Service, PAS, as per the lay members.
Alternatively, as has been suggested by others, the Bar Council’s nominee could be elected by the entire membership of the council, as in the recent selection process for the practising barrister panel of King’s Inn. A similar process could be engaged in by the Law Society.
We are of the view that the legislation should stipulate that the lay membership should exclude anybody who has practised as a solicitor or barrister, either over a period of time, for example, two to five years or forever. That is something worth considering.
The expertise of lay people and that being quantified in some way is necessary. I note that in the Minister’s heads of Bill, we have a list A and list B of expertise criteria. Our reading of it is that list A is fine but list B is very restrictive and would limit the types of people who would be able to come forward.
We believe it is important for a wide range of professions or disciplines to be allowed to be considered for the commission. Under list B as it stands, the only people who could qualify would be senior civil servants, solicitors and barristers. We definitely need to expand that category.
The explanatory memorandum provided notes about the types of lay expertise but we are keen to add to the A list people who have a background, for example, in sentencing, penal reform, perhaps addiction and working in the area of drugs. Such experience would be important.
Deputy O’Callaghan made some good points about how the lay people might bring their political views to the table, for example, pro-life, anti-abortion, pro-choice or whatever else. That is equally the case with anybody in society.
A legal person could similarly want to be involved in the commission for precisely the same reasons. We must test the expertise of all. We are talking about merit and that must apply to all members of the commission.
We proposed an amendment to Deputy O’Callaghan’s Bill about the making of appointments to the commission in terms of meeting the gender balance. That is a difficult issue because in the initial stages in particular one must recognise that currently there are huge gender imbalances in the legal and judicial profession and forcing a 50:50 split now would not give the best expertise because of this.
We must strike a balance between trying to achieve a gender balance, which will probably only come in time rather than insisting on it as an absolute. How we formulate that will be important.
Reference has been made about the diversity clause, which we believe should apply to the legal and judicial members as well. I do not wish to spend a huge amount of time on the issue but in terms of head 10, for example, the code of practice function, we think it is very novel. We had not suggested it and Deputy O’Callaghan had not either.
The basic idea is that the commission would create a code of practice based on its own research and the code of practice would be used, among other things, to draw up a list of selection criteria to which the commission would have regard in the appointment of judges.
There are some very good ideas in the Bill but we have concerns about it at the moment in terms of how it is phrased in the heads, for example, why a subcommittee of the commission is necessary to carry out the code of practice function rather than everybody on the commission doing it.
It is worth pointing out as well that it would not be possible to constitute a committee of seven members in proportion to the membership of the commission as given the way the numbers break down it is not mathematically possible for one to have people so one would not get the balance based on the proposed approach.
While giving the commission an important role in monitoring and implementing international best practice on the appointment of judges to inform the selection process is no bad thing there could be a certain long-fingering involved. I tend to agree more with Deputy O’Callaghan in terms of the points on head 22, his section 15.
By contrast, we would be leaning more in favour of his section 15 rather than the Minister’s head 22, which is about the list of requirements in relation to the appointment of judges. The Minister’s list is extremely thin and Deputy O’Callaghan’s has much greater weight and is far better in that regard. We would tend to err in that direction, without repeating any points.
On head 32, Deputy O’Callaghan’s section 23 on senior appointments is better as well. It is more sensible than the Minister’s suggestion, which relates to the appointment of the Chief Justice, President of the Court of Appeal and the President of the High Court.
Deputy O’Callaghan’s Bill empowers the commission to make a recommendation to Government for such senior appointments based on merit, a similar principle to all other judicial appointments.
As Deputy O’Brien said, we need to hear more about the constitutional issues. I agree with Deputy O’Callaghan about ranking. The candidates should be ranked. It will be up to the Government to pick one but given that the commission will be appointed to give its view on who the best person is for the job then the candidates should be ranked.
The power is vested in the Government because we are told it is required constitutionally and that the Government cannot be constrained in the manner in which is suggested throughout. I question some of what has been said and I would like to hear more in that regard.
We have a number of detailed points on the various heads but they are probably too detailed for the present discussion. They probably touch off the broad points to which we would refer in this regard. We are open in our approach. I agree with what Deputy O’Brien said about whether there should be nominating groups for lay people or a role for the Public Appointments Service or if we should have some middle ground in that regard. It would be important to get agreement but we are very happy with the overall balance and having a lay chair. We think that things could be progressed.
The Minister referred to the judicial council Bill and that element of the work. It is at least as important if not more important for us to address those issues. There was some talk that the Bill would be fast-tracked and done in tandem with this Bill. That is necessary.
Part of the project is to engender confidence in the judicial process. Not only have serious issues been highlighted about judicial indiscretion or the irrationality of judges in relation to cases involving me or others but it is almost a daily occurrence that members of the public find things difficult, in particular at District Court level, and do not have a mechanism to call into question poor practice by the Judiciary.
It is about justice being seen to be done. Only last week Deputy Wallace and I met a serving member of An Garda Síochána who told us that in a family law case a judge had intervened with his partner’s family and discussed the case with a family friend outside the norms of the court and gave the person a protection order against the individual.
It was a complete perversion of the course of justice that a judge would informally deal with a family law case in such a way and give an order. That judge is still serving. There are many such issues and there is an urgent requirement to address them.
From top: Irish Times Health Correspondent Paul Cullen; Independents 4 Change TD Clare Daly and health correspondent at The Irish Times Paul Cullen
You may recall the publication last week of Judge Maureen Harding Clark’s report on the symphysiotomy redress scheme.
And some of the subsequent criticism of both and the report and the media coverage of the report.
Senior lecturer at Birmingham Law School, Mairéad Enright wrote:
[Judge Clark’s report] is not the independent report survivors of symphysiotomy are entitled to under human rights law. The media have read it as diminishing SOS’s claim that the non-emergency substitution of symphysiotomy for Caesarean section without consent, as practiced in Ireland, violated many women’s human rights. However, this coverage has been insufficiently critical of this report.
“…It is a mistake to think of the story of symphysiotomy as one about ‘bad doctors’. It is a story about bad systems of knowledge, and bad cultures, which corner women, induce compliance, deny their autonomy and thereby wound them. Those cases are extraordinarily difficult to litigate because the assumptions which drive the old system persist in judicial reasoning and are exacerbated by an adversarial framing.”
“Outside the courtroom, we can find the same problems. What is striking about this report is that it uses constructs from those systems and cultures – valorising reproduction however painful, stoking a suspicion of women who claim their human rights, privileging medical literature over first person testimony – to silence protest. It deserves closer, and more critical reading and discussion.”
Further to this.
Yesterday, Independent 4 Change TD Clare Daly and Anti Austerity Alliance TD Ruth Coppinger raised Judge Harding Clark’s report and the media coverage – with Ms Coppinger naming Irish Times journalist Paul Cullen.
Clare Daly: The Harding Clark report into the symphysiotomy redress scheme has been described as deeply skewed, profoundly unfair, subjective and selective, intellectually dishonest, morally bankrupt, replete with false allegations, omissions, distortions, misrepresentations and contradictions, and biased throughout. Those who said that are being soft on Judge Harding Clark whose report cannot go unchallenged or uncorrected. She goes way beyond the terms of reference of her assessor report to the Minister for Health when all she was asked to do was deal with the activities and expenditure of the scheme. Instead, she deviated into personal and unsubstantiated commentary, which is highly inappropriate in the context of outstanding litigation. Her report is riddled with false allegations, such as alleging that leading campaigners against symphysiotomy had alleged they had the procedure when they had not. That is completely and utterly untrue.”
“The only interpretation one can draw from this report is that it is a defence of the uniquely Irish practice of non-emergency symphysiotomy. It serves to diminish survivors’ claims and is a further violation of those women’s human rights. Symphysiotomy as practised in Ireland is a human rights abuse and that is the case regardless of this report. There can be no denying that the State has been culpable in this but rather than address these matters honestly, the report has served to diminish the suffering caused and undermined the experiences of the women. There is a continued suggestion that the women were lying. Nobody who met these women could ever believe that.”
“Of course, Judge Harding Clark met hardly any of them. It was a paper review with no right to appeal any of her decisions. It was her opinion and her opinion only. It is hugely traumatic for the women involved that this horrific report has been published. I believe the Minister needs to intervene to have it withdrawn. It is hostile in its tone and it smears and discredits survivors rather than dealing with a bad and deliberate policy and a poorly-administered scheme. It needs to be withdrawn and we need clarification on this matter.”
Ruth Coppinger: “I, too, have been absolutely appalled by the media coverage and the commentary of certain people in the media in the last week in response to this report. I agree that the methods of assessment were defective. I agree with Deputy Daly on the policy of Judge Harding Clark of taking oral evidence and meeting only a handful of the women involved. If she had met more, she would have seen for herself some of the injuries and limping, etc., that these women endure. Using contemporaneous radiology in one particular case, the judge stated that a 2004 X-ray did not show injuries to the women and that therefore the injury had happened afterwards. The judge went way beyond her brief, showed her own bias and showed contempt for these women. I believe it is absolutely vital that this Dáil and the Government agrees to set aside time to have a proper analysis of this report.”
“There are a couple of myths that the report tries to knock down. The first is that symphysiotomy was a normal procedure practised in many countries, as argued by Paul Cullen, for example, in The Irish Times. In 1944, there were four of these operations in the national maternity hospital. In 1948, there were 43. That was because of the arrival of Dr. Alex Spain, an arch-Catholic, as head of the hospital, who refused caesarean sections and said that their result would be contraception, the mutilating operating of sterilisation and marital difficulty. It is utterly wrong to say that. They also argue that symphysiotomy was not dangerous. Clearly, it was. It was not a benign procedure. It was not used in other countries as a first resort; it was used as a last resort. This is the third whitewash report there has been. It is a disgraceful indictment of the system that it does this to women who were brutalised in Catholic Ireland of the past.”
Daly: “I have to say that there has been a certain rewriting of history again. We know that the majority of survivors never accepted this redress scheme to begin with. The Minister of State is dodging the key elephant in the room, which is that this report goes one step even further from that. It is riddled with factual inaccuracies, unverifiable anecdotes and is severely damaging. It is well known that people experience trauma and upset as victims of abuse if their stories are not believed. The report is done in a manner which disbelieves the testimony of the women involved. It makes outrageous claims. We know that not one woman anywhere submitted that she had consented to or was aware of that procedure, yet the judge said that she found it very difficult to believe that is the case. There is no evidence to support her view in that situation. This is the same judge who, when awarding payments previously, told the women they were getting the money to redress their “unhappy experience”. This was deliberate butchery that was carried out on people for ideological reasons.”
“What the report shows is a deliberate undermining of the human rights campaigners and groups whose work actually led to the setting up of this scheme to begin with, bad and all as it is. I remind the Minister of State that it took a former Minister to go to court to get the Guerin report withdrawn. We know the McAleese report into the Magdalen laundries was hugely criticised and controversial. The point that is being made here is that this document cannot stand. In and of itself, it abuses the women involved. It has to be withdrawn and considered further by this House.”
Coppinger: “There has been an attempt by the Catholic right to seize on this highly flawed report to argue against the whole question of Catholic control of maternity hospitals. There is no question that this was done and motivated by a Catholic medical theology. It is also argued very patronisingly that these women did not know the difference between a caesarean section, a symphysiotomy or anything else that was happening to them.I know women were kept in ignorance but I think most women would know if they had their pelvic bones broken.”
“The scheme relied on written and radiological evidence which was extremely unfair because proving a symphysiotomy happened over 50 years ago is incredibly difficult if medical records do not exist. In that sense, the scheme militated against the older women and some younger women were able to pursue their claims successfully. The fact there were 185 unsuccessful applications does not mean that 185 symphysiotomies were not carried out. As I said, it was difficult to prove. People were also only given 20 days to apply to the scheme which is highly restrictive in the context of gathering up information.”
“There is no way that this Dáil could or should stand over this report. A debate must take place in this Chamber to question the rationale of Judge Harding Clark.”
Independents4Change TD Clare Daly, Ceann Comhairle Seán Ó Fearghaíl and Justice Minister Frances Fitzgerald
During Leaders’ Questions which were held by Minister for Justice and Tánaiste Frances Fitzgerald.
Independents4Change TD Clare Daly raised the matter of Judge Iarfhlaith O’Neill’s investigation into allegations made by Garda whistleblowers – which is due to be given to Ms Fitzgerald next week – and informed the Dáil that she and fellow TD Mick Wallace have met with six new gardaí who have, or are about to, make further protected disclosures.
During their exchanges, Ceann Comhairle Seán Ó Feargháil interrupted to warn Ms Daly not to make allegations about Garda Commissioner Nóirín O’Sullivan in the Dáil, as to do so would be “inappropriate”.
Readers may recall how Judge O’Neill is investigating protected disclosures which allege that, within the gardai, there was an orchestrated campaign to destroy the reputation of whistleblower Sergeant Maurice McCabe.
Former head of the Garda press office Superintendent David Taylor was one of the people who made such a disclosure and has claimed that he was following orders from senior gardaí.
Readers may also recall how it has been reported that, in February 2015, phones and a laptop belong to Supt Taylor were seized by Garda Commissioner Noirin O’Sullivan’s husband Det Supt James McGowan – two months before Supt Taylor was arrested for allegedly leaking information to a journalist in relation to a Roma child being taken into custody.
In addition, readers may note that, last Sunday, in the Sunday Business Post,Francesa Comyn reported:
Taylor’s solicitors recently wrote to Fitzgerald and Enda Kenny highlighting the “fundamental” need for Taylor’s mobile devices to be handed over to the inquiry for an independent forensic investigation. The court heard that the government has not responded to the letter.
Further to this…
Clare Daly: “Tánaiste, five weeks ago, you referred to very serious protected disclosures from two senior gardai to a retired judge Iarlaith O’Neill for urgent inquiry. Now, the disclosures which allege that the Garda Commissioner Noirin O’Sullivan was directly involved in a systematic and organised campaign to discredit the whistleblower Maurice McCabe, with colleagues, politicians, journalist, were due to be investigated by the former judge who’s due to conclude and report back next week.”
“Now, he was given no powers of compellability, no terms of reference. Attempts made by other whistleblowers to have their cases also heard, as they too are the victims of bullying and harassment since making protected disclosures, were ignored. Despite the fact that their testimony and their experiences are current,they get to the very heart of the systemic problems inside An Garda Siochana, that what’s said in public and done privately are two entirely different things.”
“Now it was hardly an auspicious start to the inquiry, given that was its foundation and you’d be forgiven for thinking actually that it was put together as a fig leaf, maybe for you to take cover behind, for your lack of action in this regard. Now that view has been strengthened but we now we find out that, with a week to go, to the issuing of his report, the former judge has not requested any material from either of the two whistleblowers, he hasn’t met either man. He hasn’t even spoken to either man. In fact, the only interaction, about two weeks ago was a request to their legal teams to pass on the protected disclosure to the Garda Commissioner. You couldn’t make this up.”
“What sort of an inquiry do you honestly expect us to believe that this is because while this has been going on, we’ve had the Garda Commissioner appear at the justice committee, with senior officers who are at the heart of many of the protected disclosure complaints. At the same meeting, the Garda Commissioner misled the committee by stating that she wasn’t privy to information about a campaign of harassment against any member of the force when she was actually in direct receipt of 14 occurrences and letters outlining precisely that situation. She’s been the subject of a detailed section 41 complaint which she’d been briefed on. We’re awaiting the GSOC finding and she’s lost the support of the ranks of that force, by intervening in a partisan way in their legitimate pay claim with her threats of martial law.”
“So, my question to you, Tanaiste, is why have you allowed this situation to continue to the crisis point that it’s at? On what basis do you believe that you have the right to delegate, to retired judges, GSOC and to the courts, functions that are your responsibility in law, namely to hold the Commissioner to account?”
Ceann Comhairle Seán Ó Fearghaíl: “Tánaiste.”
Frances Fitzgerald: “Well I, I would have thought, deputy, that the court of appeal ruling today would have been a solid, a very intense reminder to members of this house that we should take stock and reflect before making allegations here. The good name and reputation, I would say, of all individuals deserves respect and fair procedures. You’re putting on the record various points about a report a judge is currently conducting and is due to report on, next week. You’re saying you have access to details about that. I don’t.”
“This is an independent report by a judge. And as the House is aware, I appointed Judge Iarfhlaith O’Neill to review allegations of wrongdoing set out in some protected disclosures made to me. In addition to reviewing the allegations, Justice O’Neill has been asked to report on his conclusions, it’s a preliminary report and to make any recommendations that he considers necessary in relation to any further action deemed appropriate or warranted. The report, the review has been commenced and he asked, he has been asked to report within six weeks – which will be next week – and I’ve no reason to believe that deadline will not be met. So that’s the situation we’re in. As soon as I receive that report I will consider it very carefully, examine the recommendations that have been made and the Government will decide on future action in relation to the points that you’ve made.”
“I asked Judge O’Neill to do this review because I was very concerned, as I have stated in this house previously, at the content on the material, in the material that I have received and that’s why I decided that should be done. The Garda Commissioner, for her part, has indicated publicly that An Garda Siochana will co-operate fully with any examination of these matters and, you know, how the judge conducts his business during this six weeks, is a matter for him. I would get the report, I will examine the report and will decide on action, I can assure you in relation to the issues that he’s examined. But I’d like to see his recommendations first.”
“This was a first , if you like, a first assessment that it would be extremely useful to ask a judge to examine the first instance, the material that had been, that had been given to me. Now if for any reason, he has concerns about the level of co-operation, during the six weeks, I’ve no doubt that he will make that very clear and I will certainly be reading his report with great interest when I receive it next week.”
Ceann Comhairle: “Deputy Daly, can I say that, generally speaking, it would be my desire to ensure that every leader here had an opportunity, during Leaders’ Questions, to raise matter of important public concern. And you’re doing that. We have absolute privilege here but we should be very, very careful how we use that absolute privilege. And it has been a longstanding precedent that we would not make allegations against people outside the House. You’ve referred to the protected disclosures – that certainly is a matter that is in the public media. But you have made specific allegations about a committee being misled by the Garda Commissioner – I think that’s inappropriate, I don’t think it’s something you should do – it certainly is not something you should now repeat.”
Daly: “I take my responsibility very seriously in that regard, Ceann Comhairle, I can state again very firmly that anything I said was not an allegation at all. It was not a use of privilege, it was details of facts which can be supported by evidence and I’ve no problem in standing over any of those points.”
“The Tánaiste makes the point that it’s up to the judge to carry out the inquiry, as he sees fit. He can only do that within the confines of the powers that he has. Can the Tánaiste confirm to the house that the judge has been given the authority to request the electronic information that supports the allegations at the heart of these matters? Because people’s good names are very important and at the heart of this matter is the muddying and the tarnishing of the good name of Sgt Maurice McCabe and of the horrendous nightmare that is being experiences by members of An Garda Siochana currently, who have made protected disclosures and not just the ones whose names are in the public domain but, subsequent to a lot of this happening, myself and Deputy Wallace have met with a further six serving members of An Garda Siochana who have all either made protected disclosures or are on the verge of doing so.”
“So, what I’m trying to get my head around is: what part of this do you think is normal? And is ok? We have an enormous crisis of confidence inside An Garda Siochana, primarily and largely centred in the role of the Garda Commissioner. The civilian head of An Garda Siochana, GSOC, the courts are investigating these matters – you seem to be okay with delegating your legal responsibility for doing precisely that to other and you won’t get away with it.”