Commissioner Nóirín O'Sullivan has denied ever regarding whistleblower Maurice McCabe as 'malicious'
Tánaiste Frances Fitzgerald has ruled out asking the Garda Commissioner, Noirin O'Sullivan, to reveal details of her dealings with her own legal team.
The Fine Gael TD told the Dáil it would not be appropriate to break the usual rules of legal privilege enjoyed by a lawyer's clients.
The issue was again raised in the house tonight by Independents4Change TDs Clare Daly and Mick Wallace.
The Tánaiste said that asking the commissioner to discuss her instructions to her lawyers at the O'Higgins Commission would be unfair.
Minister Fitzgerald earlier said she is legally constrained in what she can say about the O'Higgins Commission.
It follows claims Nóirín O'Sullivan accused whistleblower Sergeant Maurice McCabe of 'malice'.
Sgt McCabe is said to have presented the commission with a tape that disproved the claim that he brought complaints because of his ill will towards a senior officer. No mention of the exchange is made in the commission’s final report.
In a statement yesterday evening, Ms O'Sullivan said she was legally prevented from commenting on private evidence, and also stated that she never regarded Sgt McCabe as malicious.
Meanwhile, Fianna Fáil leader Micheál Martin has called Maurice McCabe a victim and said the alleged comments showed how whistleblowers are treated.
Deputy Martin claimed: "There's been a campaign to undermine Sgt McCabe. There seemed to be a fundamental reluctance to accept the veracity and credibility of what he was about".
Earlier, Labour leader Joan Burton called on the garda chief to clarify the allegations.
The Labour TD said legislation does allow the commissioner to respond to reports on comments made by her legal team.
She told Newstalk Breakfast that the law makes “a clear distinction” between a witness and person involved in giving information to a commission of investigation.
Ms Burton said that the Commissions of Investigation Act 2004 prohibits a person from disclosing or publishing any evidence given by a witness in private.
But she added: “Lawyers are not witnesses and their statements to a commission are not evidence so prohibition does not apply.
“There is no provision in the [legislation] that restricts a person from commenting on the statements of lawyers before a commission.
“In particular, there is no bar on a party explaining the statements of their own lawyers, made under the instructions of their clients.”
Ms Burton said the garda chief should now clarify the stance her legal team took towards Sergeant McCabe.
“Whistleblowers must be able to bring them matters of public concern forward and have them properly examined without the person who becomes a whistleblower being sidelined, excoriated or stonewalled out of doing their job,” she said.
Sinn Féin TD Jonathan O'Brien said Nóirín O'Sullivan is in a difficult position, suggesting "if she can categorically state that she did not ask her legal representative to make those allegations, then there's an even bigger question".
"The question then arises that the documentation, which has been seen by the Irish Examiner, is obviously not legitimate documentation," he added.
"That would beg the question then of who is leaking that information."
Garda authorities have already indicated that they will accept the findings and recommendations of the O'Higgins report, which was published last week.