Seán Sherlock (Cork East, Labour) | Oireachtas source

Mr. Justice Charleton described sitting through the hearings in Dublin Castle as a dispiriting exercise. For those of us who have done so, reading his report is equally dispiriting. As Mr. Justice Charleton wrote, "Every judge is conscious that the task of judging others is a human function. As such, it is fallible." The judge will therefore understand that I do not share his every opinion as expressed in this report, particularly on matters of political accountability. However, I do believe that it is an impressive exercise in arriving at the truth on factual issues and in securing answers that were previously hidden from us.

I want to concentrate on three aspects that most immediately concern us as public representatives. I start with the controversy surrounding Deputy Fitzgerald, even though it is far from being the most important aspect of this affair, but we need to get it out of the way. As has been pointed out by others this week, here and in the media, her Government colleagues have attempted to use the report in order to exonerate Deputy Fitzgerald of a charge of which she was not accused. As a Government member and Minister for Justice and Equality, Deputy Fitzgerald's primary responsibility was to account fully and accurately to this House for the performance of her functions. The reason she resigned was not because of anything that happened in 2015. I want to be fair to Deputy Fitzgerald because we all hold her in high regard on a personal basis. The reason she resigned was because of what happened in 2017. Deputy Fitzgerald resigned last November because the Dáil was misled about her knowledge of issues at the O'Higgins commission that took place in May 2015. I repeat that this is an issue of political, rather than legal, accountability, best assessed by the Members of this House.

What is now clear about the issue at the O'Higgins hearings in May 2015 is that the Chief State Solicitor's team considered it to be "political dynamite" and Commissioner O'Sullivan considered that she was in an "almost impossible dilemma". The Department and then the Minister were notified about what was going on. The Minister, Deputy Fitzgerald, acknowledged that she must have read the email sent to her about it. She decided not to intervene, and Mr. Justice Charleton believes this was correct. We have no quarrel with that, although, carefully, the judge did not say that a Minister could never intervene in such circumstances. He expressly left it open that a Minister would be fully justified in intervening if in fact false allegations of sexual abuse had been deployed before Mr. Justice O'Higgins, in order to unfairly traduce Maurice McCabe. In any event, in November 2017 my colleague, Deputy Kelly, submitted parliamentary questions about what was known about all of this in the Department of Justice and Equality. The answers he received were vague and unhelpful, but he persisted. He might, truthfully, have been told in reply that the Minister was aware of the issue but had decided on legal and official advice not to interfere. Instead, officialdom behaved as if it had something to hide, and as we subsequently found out it did. The Taoiseach was briefed by his Minister and told the Dáil that the Minister, "found out about it [the legal strategy] after the fact, but around the time it was in the public domain when everybody else knew about it as well". That simply was not true and the subsequent trawl of emails in the Department showed it was not true. Then, to top it all, we discovered that the emails had not been sent to the tribunal, ten months after it had been appointed. The Minister resigned the following day. The Dáil had been misled about the nature and extent of her knowledge of a matter of live public controversy. In the atmosphere of last November, there was no alternative to the step she took.

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