Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

The Fennelly report and the recording of non-999 phone calls in Garda stations provides a good example of how we in this country create, maintain and respond to a crisis. To take the issue of the non-999 phone calls first, a practice develops in Ireland to record phone calls in Garda stations and no one gives any consideration to whether it is lawful or not. Second, the practice continues for a long period, and even though its unlawful status is noticed by people in authority, nothing is done about it and no one takes responsibility in respect of it. Third, this is not a devious conspiracy caused by abuse of public office but, like most things in Ireland, it is a mistake that is created through inadvertence, misunderstanding, fecklessness, careless and other such characteristics. Fourth, when it comes to the attention of a person in a position of authority in government, they do not notice its significance in the first place. Fifth, when they do belatedly become aware of it, the Government responds to it in an alarmist and excessive way and overreacts to the problem. Sixth, when Governments are in panic and in crisis, what do they do? They go off and look for a judge to sort out the mess. Seventh, the judge comes in and clears up the mess. The eighth and final phase is the one we are in at present, where people thank the judge for having sorted out the mess that was in the political system in the first place.

Since I am in the eighth phase, I will play my role by thanking Mr. Justice Fennelly for the very detailed and comprehensive report his commission of investigation has prepared. It is a further example of how members of the Judiciary in this country play a valuable and important role in sorting out problems created in many instances by other arms of the State. It is sometimes not mentioned enough that the judicial arm of government in this country is one of the successes we have had since Independence. I may return to this point later.

It is noteworthy that it was on 25 March 2014 that the Government announced this commission of investigation was being set up to examine the recording of phone calls in Garda stations. When I went back to look at the debate from 26 March 2014, I was particularly interested to see the contribution of the then Deputy Shane Ross, who was Deputy for Dublin South in the previous Dáil, although he has not been seen much since then. This is what Deputy Ross said in response to the Government announcement that it was setting up a commission of investigation:

It defies credibility. Two days ago, there was a Cabinet crisis of a fairly hefty dimension and, suddenly, to the rescue comes this bombshell of news about the system containing tapes which nobody knew about before. That was no coincidence. It is quite obvious that several persons were sitting on this ready to release it at an opportune time ... It came to the rescue and it also served the Minister's, and, indeed, the Government's, purpose well in that it accelerated the resignation of the former Commissioner ... There is no doubt about that.

I hope that, in due course, the Taoiseach, when he locates the Minister, Deputy Ross, will ask him whether he still maintains those views. He should ask him whether he still maintains this was no coincidence, but rather that it was an elaborate scheme to deflect attention from what happened to the former Commissioner.

There are a number of noteworthy points that we can identify from Mr. Justice Fennelly’s report and I want to point them out. We know that between 1980 and 2013, non-999 calls to and from Garda stations were recorded. We know that this recording was unlawful in that it did not have a statutory basis, nor was it lawful under common law, and it was also in breach of the constitutional right to privacy. We know that the commission found no evidence of widespread abuse of the system and that the recording was caused by confusion, ignorance and misinformation. We know that the commission heard evidence from five former Commissioners and the current Commissioner and none of them was aware of the systematic recording of non-999 calls. In particular, none knew that the main station number at divisional stations outside the Dublin metropolitan area had been recorded as a matter of routine since 1995. We know that the commission has concluded that the recordings did not constitute an offence under section 98 of the Postal and Telecommunication Services Act 1983 because they did not take place in the course of transmission.

We know that in November 2013, the Office of the Attorney General was informed of these recordings. We know that in November 2013, when the then Garda Commissioner was informed of these recordings, he directed that they cease immediately. We know that on 10 March 2014, the Commissioner wrote to the Secretary General of the Department of Justice and Equality providing full detail on the issue. The letter was not brought to the attention of the then Minister. We know this letter was also not brought to the attention of the Attorney General but she was given a copy of the letter of 19 March 2014 that had been written by the Garda Commissioner to the Data Protection Commissioner. We know that on the evening of Sunday, 23 March 2014, the Attorney General briefed the Taoiseach and the Secretary General to the Government. The report of Mr. Justice Fennelly states at paragraph 1.2.30: "It is inescapable that the Attorney General presented an alarming picture to the meeting, to such an extent that the Taoiseach was, as he says himself, shocked.” We know it was decided on the following day, 24 March 2014, that a commission of investigation would be established to look into the telephone recording issue. We know Mr. Justice Fennelly in his report notes that the Attorney General told the Commission that the Taoiseach was very seriously concerned and immediately indicated that, in his view, given the gravity of the matter and the public importance of trust being restored and maintained in the Garda, a commission of investigation was warranted and that nothing less would be acceptable to allaying every public disquiet and anxiety.

I want to pause there and say it is extraordinary that the one person who actually did something about this, the Commissioner who stopped the recordings, is the one person in all this dramatis personaewho lost his job. It is also surprising that there was no discussion between the Office of the Attorney General and the Minister for Justice and Equality in November 2013, when the Office of the Attorney General became aware of these recordings. What it reveals, I regret to say, is the serious lack of communication that then existed at the top of Government and which led to this unnecessary crisis.

I said at the outset that there are eight stages to how we create, maintain and respond to a crisis in Ireland. Let us look to see how this should have been dealt with when it was discovered that the calls were unlawful. Had the issue been considered, discussed and deliberated upon in a considered and careful manner, then there would have been discussions between representatives of An Garda Síochána and officials from the Office of the Attorney General, who would have discussed it with the Minister for Justice and Equality or officials from his Department. The Department of the Taoiseach would have been brought into the matter only when a resolution had been reached. That is how this potentially serious issue should have been dealt with at the time. Instead, there was an overreaction. In fairness to the Taoiseach, his reaction was based on advice given to him. The overreaction was that the Taoiseach believed the prisons were going to be emptied, that criminals were going to walk free and that decisions of tribunals would be overturned. There may have been validity to some of the concerns at the time but it is clear that the concern itself was significantly overestimated.

One aspect of this is worth pointing out. The Taoiseach may legitimately say, or he is saying, we should not have had a commission of investigation. In my opinion, it was right that we had a commission of investigation. There were serious allegations put into the public domain. The allegation was that members of An Garda Síochána were involved in an abuse of public office and some pernicious conspiracy to undermined the rights of individuals before the courts and while they were being considered before trial.

It is clearly in the public interest for wrongdoing to be disclosed. Similarly, however, when there is no wrongdoing, it is equally in the public interest for that absence of wrongdoing to be disclosed. We know from the report that the activity was unlawful. It arose, however, as a result of inadvertent mistakes and misunderstandings. We now need to implement the recommendations of the report, as identified by Mr. Justice Fennelly. We need to put in place a legislative framework to make lawful the recordings of conversations in Garda stations. There is a public benefit in having telephone calls to Garda stations recorded. It is in the interest of the public and An Garda. We also need to examine the offence of interception under the 1983 Act to determine how we can make it more effective.

I thank Mr. Justice Fennelly. The work done is an important illustration of the important role the Judiciary plays. I acknowledge the Taoiseach is going to introduce some legislation in respect of reforming the Judiciary. I ask him to be careful before he hands over control of that reform to his Minister for transport, judicial reform and local Garda stations.

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