Mr. Brian Purcell:

I understand that my opening statement has been circulated to members. My aim is to be as helpful as I can in their deliberations. If they will permit, I will add a few key points.

As the committee is aware, recent events have led to the establishment of the Fennelly commission of investigation, which will have an opportunity to hear from all sides regarding what was an unprecedented, complex and difficult matter. A further commission is to be established following the publication of the Guerin report. In addition to these inquiries, the Government has outlined a comprehensive system-wide reform plan that represents a sea change in the way policing will be delivered. This process is being led by the Minister, Deputy Fitzgerald, who has announced a number of measures.

Legislation is being prepared to establish an independent Garda authority by the end of this year. This is a major reform initiative that will transform the relationship between An Garda Síochána and the Government. In future, Garda Commissioners will be appointed following an open competition. This process will be undertaken by the Public Appointments Service, PAS, and means that the post of Commissioner will be filled with regard to best recruitment practices.

Legislation is being drafted to strengthen the remit and powers of the Garda Síochána Ombudsman Commission, GSOC. As the Minister has stated, the measures in prospect will bring the Garda Commissioner within the scope of the complaints that can be dealt with by GSOC and increase the capacity and remit of GSOC to initiate reviews of Garda practice and procedure without reference to the Minister.

The Garda Inspectorate is to carry out a follow-up review of the Guerin report, covering serious crime investigation, management and operational and procedural issues, taking into account the implementation of recommendations already made by the inspectorate in earlier reports and also work currently under way by the inspectorate.

Crucially, the Protected Disclosures Bill, as introduced by the Minister, Deputy Howlin, will include provisions to enable a Garda whistleblower to report concerns to GSOC for independent investigation. This will mean that Garda whistleblowers will, from now on, have a strong legal framework within which to report concerns, strong legal protection against penalisation and the opportunity of a fully independent legal examination of their concerns.

A review of the performance, management and administration of the Department of Justice of Equality will also be undertaken by independent experts before the summer recess.

These measures are designed to transform oversight and accountability and, taken together, will constitute a fundamental change in the way the Garda is managed and relates to the Government and the Department.

As I outlined in my statement, the Department has a broad remit. On the Garda side, the Department's purpose can be said to be one of supporting the Garda on the one hand and seeking to achieve appropriate accountability to the Government on the other. The context for all of this has evolved over decades when the very existence of the State was under threat. It is now clear, and the Department recognises fully, that the arrangements for dealing with Garda whistleblowers did not prove fit for purpose. In so far as that may have involved shortcomings on the part of the Department, I have no hesitation in apologising to all those who have been affected by those shortcomings, including the whistleblowers themselves.

In considering the issues before the committee, we need to consider the Garda Síochána Act 2005, which is the framework provided by the Oireachtas within which the Department and Garda operate. The Act distinguishes between the roles of the Minister and the Commissioner, the Minister being responsible for policy and direction and the Commissioner being responsible for independently running the force. The framework includes independent oversight by GSOC and independent inspection by the Garda Inspectorate. It also provides for the role of confidential recipient.

The tools in the Act provide for the Commissioner to account to the Government and Minister through the Secretary General. There is a duty on the Commissioner to keep the Minister and Secretary General fully informed on various important matters and the Minister is in turn accountable to the Houses of the Oireachtas.

I say this not to seek to pass the parcel but rather to point to the complex web that exists to ensure the operational independence of the Garda Síochána while at the same time ensuring accountability. The extent to which this framework has worked or not worked, and why, will no doubt be teased out by the forthcoming commission of inquiry. In fairness to the staff of the Department, I have to make clear my belief that we were at all times motivated by one thing alone, which was to act in the public interest within the law. In that context, I believe that we acted in a reasonable manner within the structures in place at the time. A lot has worked. An Garda Síochána has had notable success on the crime detection and security fronts. Some things have not worked and we may have been slower than we might have been in responding to those.

The truth is that the structures put a lot of reliance on the relationship between the Garda Commissioner and the Minister and Department. Given the sensitive issues being dealt with, mutual trust and confidence is and has always been crucial in this relationship and this has been built up over a long period of time, not during the term of any single officeholder. The legislation provides for a duty to account and to provide information supplemented by the independent oversight mechanism of GSOC. We do not have a separate investigative set-up in the Department. It is always a challenge in dealing with complex agencies to avoid “regulatory capture” and this is where lessons can be learnt as we, collectively, consider what enhanced structures and processes should now be put in place.

This raises the legitimate question of whether over a long period we could have done better in learning lessons and improving Garda accountability. Yes, we could have done. I cannot say that we have always, at all times, achieved a perfect balance in managing critical policy and operational issues across the huge range of justice and equality responsibilities. Most assuredly, I acknowledge that the Guerin report has given rise to a grave situation which I must devote my utmost effort and attention to resolving though specific and targeted changes.

Some of the relentless criticism of the Department and the excellent people whom I have the privilege to lead as Secretary General is not well founded. I recognise, however, that confidence in the Department has been damaged and must be quickly restored. There is in the Department a determination to change what needs to be changed and to turn recent events into an opportunity to learn key lessons and put them into action.

As Secretary General of the Department, I hope to engage with members of the Committee to explain matters as best I can. I also look forward to the outcome of the committee’s current consultative process in contributing to the ongoing work to identify the best way to address the weaknesses that have been exposed. Having said that, and as I have explained in my written statement, I hope members will understand that I am somewhat constrained in what I can deal with.

I fully appreciate these matters are of legitimate interest to committee members. The difficulty is that, although it would be much easier in many ways to come in here today and fully answer their questions, I must respect the fact that the Fennelly commission has to undertake the work it has been charged with by the Government and these Houses.

The Government has also decided that a commission of investigation will be established following publication of the Guerin report so some constraint must also be applied to those issues. The commission in that instance has yet to be established and its terms of reference have not yet been fixed. I will, therefore, try to assist the committee as best I can on the issues Mr. Guerin raised about the Department but I hope it will understand that it may not be possible as yet to deal in detail with matters which must be left to the commission of investigation.

The report raises fundamental issues about the statutory framework and various agencies of the justice system, including the Department of Justice and Equality. Of course, the nature of Mr. Guerin's review meant that he did not find himself in a position to comprehensively address these broader issues. Presumably because of the timescale involved and because his primary purpose was to consider whether a further inquiry was necessary, at which all parties would have an opportunity to present their cases, he did not seek any views from the Department or the Minister on why it responded as it did to the complaints made by Sergeant McCabe. Neither, for reasons which he outlined, did Mr Guerin have the benefit of the GSOC perspective on these matters. Inevitably, this means that the legal analysis contained in the report and the understanding of the policy issues involved are incomplete. The commission of investigation will provide an opportunity for these to be teased out fully.

As he emphasises in his report, the purpose of the review was not to make any findings of fact or to determine any disputed question either of fact or law. Mr. Guerin questions the lack of formal submissions, etc., to the Minister. In hindsight, the lack of such material which, had it existed might have been of assistance to Mr. Guerin, is regrettable, although this reflects a practice that Ministers might often be briefed orally on particular matters and draft replies prepared in line with that briefing. It is, however, absolutely the case that the Department and the Minister were aware of the ministerial functions, scope and limitations of the provisions in sections 42 and 102 of the Garda Síochána Act 2005 and of the functions and provisions of the confidential recipient regulations. The Department had a very detailed and nuanced understanding of these legal provisions which I will go through in detail.

I accept that the record keeping meant that Mr. Guerin does not have the full picture of the thinking in the Department on the action it took and the advice it gave or, indeed, of the then Minister's thinking. I emphasise that before all of this came to light and as part of a review of risks around communications, information and records, I commissioned an internal project which is well under way to address our record keeping and other related matters.

It has undoubtedly been the practice of the Department and successive Ministers to place considerable reliance on what they are told by the Garda Commissioner of the day. There are obvious reasons for this. The Government appoints a Garda Commissioner because it has confidence in her or him to run the Garda Síochána, whose functions include detecting crime, preserving law and order and national security. If the Department or the Minister were not in a position to place such reliance on what the Garda Commissioner said, this would have the most serious implications. By law, the Garda Commissioner has the function of directing and controlling An Garda Síochána. He or she is also responsible for the maintenance of good order and discipline within An Garda Síochána.

There is a further crucial point which does not appear to be analysed in the report. The Minister had been advised by the Garda Commissioner in his report that the investigations into Sergeant McCabe’s substantive allegations had been based on earlier reports made to the confidential recipient. The Minister and the Department, naturally, knew of the provision in the confidential recipient regulations providing that all allegations made through the confidential reporting mechanism have to be notified to GSOC, in accordance with arrangements agreed with GSOC, and would have been conscious of the rationale for this, namely, that GSOC would have knowledge of the allegations and the response and could initiate an investigation in the public interest under section 102 of the Garda Síochána Act 2005 if it thought it appropriate. This was, as it was intended to be, a substantial reassurance for the Department and the Minister on the existence of independent oversight in relation to the investigation of the allegations. This is aside from the fact that the Garda files on these matters were referred to the Director of Public Prosecutions who directed no prosecution.

Neither the Department nor the Minister is an investigatory body or has investigatory powers. The Minister does have powers under the Garda Síochána Act 2005 to require the carrying out of investigations, but it is important to understand the detail of those powers in order to analyse Mr Guerin’s key findings in relation to the Minister and the Department and I will be happy to expand on this, in so far as I can, for the committee’s information.

None of what is set out here is intended to minimise the difficulties which have arisen. We had already recognised that the legal provisions for dealing with whistleblowers were proving inadequate and that there should be a mechanism for complaints to be made directly by members of An Garda Síochána to GSOC. It is intended simply to set out why the advice which was given and the decisions taken within the Department were considered reasonable given the structures in place at the time.

As I stated in my letter to the clerk of the committee, I will be happy to return at a future date to discuss these issues in detail with the committee when the various commissions in being and to be established have issued their findings.