The word "however" is often the most important utterance in any judgment. There is a big and important "however" in the middle of the key paragraph in the Fennelly report which the Taoiseach, the Tánaiste, Ministers, backbenchers and some in the media want to gloss over.
Paragraph 33.19 of the Fennelly report says: “The commission accepts the Taoiseach’s assurances that he did not, by sending Mr Purcell [then secretary general of the Department of Justice] to visit the commissioner, intend to put pressure on the commissioner to retire.” This sentence is the one which the Government’s spin machine emphasised and briefed Ministers to repeat ad nauseam this week.
Next, in the same paragraph, comes the following crucial sentence: “Seen objectively, however, Mr Purcell’s message that the matter of the telephone recording was grave and that the Taoiseach might not, at Cabinet the next day, be able to express confidence in the commissioner, delivered without previous notice, in person by the secretary general of the Department of Justice, on behalf of the Taoiseach, at the commissioner’s home, late at night, was likely to be interpreted as doing just that.”
Fennelly at conclusion number 15 repeats that he accepts that the Taoiseach did not intend to put pressure on the Garda commissioner to retire. Leo Varadkar, for example, made a point of reading out this conclusion on Morning Ireland on Wednesday. He didn't go on to read out conclusion number 16 because it again contains "however".
Utmost gravity
It says: “It was, however, the Taoiseach who made the decision to instruct the secretary general of the Department of Justice to visit the commissioner at his home, late at night, and to inform him that he considered the matters involving Garda telephone recording systems to be a matter of the utmost gravity.”
In summary, Fennelly, while accepting, solely on the basis of Kenny’s own assurance, that the Taoiseach did not intend to put pressure on Callinan, goes on in the same paragraph to point out that sending the secretary general of the Department of Justice as an emissary of the Taoiseach to the Garda commissioner’s home, out of the blue, late at night to tell him that the Taoiseach might not be able to express confidence in him the next day, was in fact putting pressure on the Garda commissioner to retire.
All of the key decisions which led to the situation where Callinan was put under this pressure to retire were made at meetings run by the Taoiseach.
Exclude Shatter
Fennelly concludes that a decision was made to exclude minister for justice Alan Shatter from those meetings until late in the second day even though he was the one person who could have got necessary factual information from the Garda. It was the Taoiseach who made this decision to exclude Shatter.
It was Kenny who decided that Callinan needed that night to be made aware of “concerns”, that it couldn’t be done in Government Buildings or Garda headquarters the next morning, and that therefore had to be done at 11pm at the commissioner’s home. Fennelly says the secretary general going to the Garda commissioner’s home was unprecedented.
The report disregards Kenny's evidence on several crucial points, often because not only Brian Purcell and Shatter, but also Martin Fraser, the secretary general of the Taoiseach's own department, gave a very different account to that furnished by the Taoiseach – and Fennelly found them more credible.
The Taoiseach, for example, told Fennelly that Purcell was not only sent out to communicate to Callinan his “grave concerns” about phone recording but also to get Callinan’s view on the matter. Fennelly concludes “the Taoiseach did not instruct Mr Purcell to obtain the views of the commissioner on any particular questions; nor did the Taoiseach invite the commissioner to contact him”.
Kenny told Fennelly he was "very surprised" when word came back that Callinan would resign. However Shatter was "firmly of the view that Martin Callinan was expected by the Taoiseach to consider his position". Purcell was upset and opposed to going to deliver the message because he knew the import of it, and Fraser was "not surprised that a decision by the commissioner to retire was the ultimate outcome".
The commissioner may have made the actual decision to jump but he did so having been blindsided and after he was threatened with being pushed or having the legs cut from under him. The notion Kenny is “vindicated” by the Fennelly report is arrant nonsense.
Twitter: @noelwhelan