Nóirín ‘can sue if she’s sacked’
Noonan warns the Cabinet that an outright sacking is legally risky
THE Cabinet has been warned by Michael Noonan that sacking the Garda Commissioner could trigger a Supreme Court challenge.
Ministers told the Irish Mail on Sunday that discussions have been held about the possibility of sacking Nóirín O’Sullivan – but it has been deemed too great a legal risk.
Mr Noonan stepped aside as Finance Minister and left the Cabinet last month when Leo Varadkar became Taoiseach.
Ms O’Sullivan has had a tempestuous term as Garda Commissioner since she took over from Martin Callinan in 2014. Fianna Fáil, which supports the Fine Gael minority government, has withdrawn its support for her, and many within Fine Gael believe she should resign.
The conduct of the Commissioner towards whistleblowers in the force is already the subject of the Charleton Tribunal, which is set to start public hearings this week.
And in recent months details of significant disagreements between the commissioner and other members of her senior management team have emerged at the Public Accounts Committee, which is investigating financial irregularities at Templemore Garda College.
In particular, Garda Head of HR John Barrett, backed by a number of corroborating statements from other members of Garda management, has told the PAC that Ms O’Sullivan knew about the irregularities earlier than she testified to before the PAC.
A Cabinet minister told the MoS the outright sacking of Ms O’Sullivan has been discounted: ‘Clearly we have had discussions about whether we could move to sack the Commissioner. But it was Michael Noonan who referred us to his experiences as Justice Minister.’
Mr Noonan was Minister for Justice between 1982 and 1986. ‘Governments have sacked commissioners before and it was Michael who pointed us to the Supreme Court ruling on that occasion. ‘So we were put off that course of action. It is not so simple to sack [a] Commissioner,’ the source added. Martin Callinan, was not sacked, but resigned in 2014 after being informed at his house, late at night, that the Government was moving to declare no confidence in him.
Former justice minister Frances Fitzgerald was one of the ministers who was privy to the discussions with Mr Noonan. Government sources say Ms Fitzgerald is now relieved to be free of the Department of Justice where she too had a tempestuous three years. She is believed to have put most of her travails down to the Garda.
‘Relations between the Department of Justice and the Garda were fine until the Martin Callinan era,’ said a source. ‘But things have changed since. It was a tough few years for Frances and she is glad to be out.’
The discussions about the potential sacking of Ms O’Sullivan have occurred since the beginning of the year. Ministers who were present said Mr Noonan gave a detailed account of his involvement in attempts to sack a commissioner in the early Eighties. In 1978, the new Fianna Fáil government dismissed Ned Garvey, who had been Commissioner since 1975. Garvey had been associated with the tough anti-IRA measures adopted by the previous Fine Gael-Labour government. He was asked by the government to resign and when he refused he was sacked without explanation.
He then took a legal action against the State and won. Both the High Court and Supreme Court found he had not been accorded natural justice and his sacking had been illegal. The upshot was that in future any government would be obliged, before removing a Commissioner from office, to inform him or her of the reasons for the removal and allow them to respond.
Another clash with the Fine Gael/ Labour government in which Mr Noonan served as Justice Minister involved Commissioner Patrick McLaughlin and his deputy, Joe Ainsworth. Mr Noonan was responding to the disclosure that the phones
‘The Callinan route is not an option’
‘Can you imagine the furore if she sued?’
of two journalists had been tapped on the instructions of former Justice Minister Seán Doherty.
Mr Noonan was authorised by the cabinet to tell the two men their continuance in office could come into question, but in light of the Garvey judgment they were invited to respond before any action was taken. He met them for discussions, which led Mr McLaughlin to write to the Justice Minister: ‘Having regard to our conversation of last night, it is apparent that you and the government feel that I have not lived up adequately to my responsibilities... In the circumstances... I have decided to retire.’
Mr Callinan took a similar form of action after he was visited at home by the Secretary General of the Justice Department, Brian Purcell.
‘O’Sullivan has made it clear that she will not be pressured into resigning,’ said a Government source. ‘So the Callinan route is not an option. And because of the Supreme Court action, the other route of outright sacking is not an option either. Can you imagine the furore if the Garda Commissioner took the Government to the Supreme Court?’
The Garda Press Office said it would not be in a position to comment on Ms O’Sullivan’s behalf.
A spokesman for the Department of Justice said: ‘Our position on Commissioner is that we have full confidence in her.’