Brendan Howlin (Wexford, Labour) | Oireachtas source

It is true to say that, in his first report, Mr Justice Fennelly appeared to raise a quizzical eyebrow at those of us in government who reacted so swiftly and decisively when we were told that Garda telephone conversations were being recorded right across the country. It would have been bizarre not to have looked askance at such a development. To categorise as alarmist those who were alarmed, as the judge seemed to do in this first report, seems to me to be unfair, particularly given that Judge Fennelly had decided to postpone until his second and final report any consideration of the question as to whether the then Attorney General's fears of illegality were justified. In the event, when one reads his key findings on that question, one must conclude that the then Attorney General's response was not just legitimate but that it was the only legitimate response. The key findings of the Fennelly report were: that the installation and operation of the telephone recording system in Garda stations up and down the country were not authorised by common or statute law and were therefore illegal; that the recording system operated in breach of the Constitution and of constitutional rights; that it breached the European Convention on Human Rights; and that it also breached substantive European Union law and the EU charter itself.

That there was, for decades, a scheme for surreptitiously recording telephone calls in Garda stations, without any official authorisation or legislative underpinning, amounts in anyone’s language to a wholesale violation of the law. This was quite properly a matter of utmost concern to the previous Government when this was discovered. The quite incredible finding was that gardaí at operational level somehow managed to maintain and operate a legally unsanctioned and unconstitutional recording system unbeknownst not only to the Minister of the day but also to their own Commissioner and to senior management. Even taken at face value, these findings point to a profound failure of governance within both the Garda and the Department of Justice and Equality.

There are some in this House who are willing to go further and utterly traduce the reputation of any person in search of headlines. To do so in the case of Ms Justice Whelan is truly wrong.

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