Mr. Brian Purcell:

I have said already that I wanted to make it clear that in my appearance before the committee I am anxious to assist in every way I can with the matters raised in the invitation. However, as I have indicated, I am precluded from discussing certain matters. I have said already that I am quite happy, at the appropriate time after the commissions have reported, to discuss it in full with the committee. I have sent a copy of the letter I received from the Fennelly commission for information. I drew the attention of the committee to the fact that the commission states it will treat my reply and my statement in confidence, save to the extent that it may be required under the provisions of the Act, particularly section 12, to disclose them or to include them in its reports in accordance with section 32 of the Act. Further, the commission's letter refers to section 11 of the Act stating that, subject to certain exceptions, it requires the commission to conduct its investigations in private.

The committee's letter makes it clear that they intend for me to give my evidence in public. Accordingly, any inquiry by the committee which impinges on paragraphs N and O of the commission's terms of reference - or, indeed, any of the terms of reference of the Fennelly commission - is highly likely to undermine and prejudice the work of the commission and will run counter to the commission's procedures to conduct its investigation in private. It would also mean that I would be giving evidence in public and in advance of any other witnesses relevant to the Fennelly commission who would be giving their evidence in private and who would already have heard or read any evidence that I gave in public if I did so.

I have already mentioned the Oireachtas standing order to which the committee referred, which states that a matter may not be raised in such a way that it appears to be an attempt to encroach on the functions of the courts or a judicial tribunal. I acknowledge that although the standing order does not specifically refer to a commission of inquiry, because the standing orders predate the 2004 Act, the intention is clear. Accordingly, I asked the committee to take this into consideration and to refrain from inquiring on any matters that impinge upon any of the terms of reference of the Fennelly commission. Having regard to the above, the committee's own terms of reference cannot be used to undermine or prejudice the specific remit given to Mr. Justice Fennelly by way of resolution passed in the Houses of the Oireachtas to inquire into matters within its terms of reference. The terms of reference of the joint committee on justice, with its remit of inquiring into the administration of the Department, cannot be used to undermine or prejudice the Fennelly commission's work, a task given to it by the Oireachtas.

Furthermore, on the matter of the Guerin report, the Government has decided and made public its decision to establish a commission of investigation under the Act to investigate the issues identified by Seán Guerin in his report as warranting further inquiry. As the establishment of the commission is imminent, I am deeply concerned that my giving of evidence in public to the committee at this point would in the same way potentially undermine and prejudice the work of the intended commission.

I stated in my remarks that I regard the Guerin report and the proposed commission of investigation in a slightly different light, although I remain very concerned about my giving of evidence in public to this committee or, indeed, anywhere else where I might be asked to give it, as it has the potential to prejudice and impinge on that commission of investigation, the establishment of which is imminent. However, I am prepared to answer questions relating to the Guerin report to the best of my ability, but I ask the Chairman to give me some leeway, in the context of how I may answer the questions about the Guerin report, to take account of the issues I have raised. My position is clear with regard to any issues that are covered by the terms of reference of the Fennelly commission. I have circulated the letter I received from Mr. Justice Fennelly in respect of that matter. Members of the committee will have had an opportunity to read it and to consider it.

I have never before found myself, and I hope never again to find myself, in a position where in any way I might be seen to be anything other than the absolute maximum of assistance to any committee of the Houses of the Oireachtas, but I think this is a rather unusual position to be placed in where a commission of investigation chaired by a Supreme Court judge has been established whose work is already under way. It seems to me to be a rather unique situation in that what could be seen as a parallel inquiry is proceeding while I am being asked to give evidence relating to matters covered by the terms of reference of the Fennelly commission. I am unfortunately in a position where I have to say I simply will not be able to answer questions relating to that matter. I hope that the committee will understand the difficult situation in which I find myself. I appreciate the point made by the Chairman and I reiterate my commitment that at such a time as the Fennelly commission completes its deliberations and produces its report - regardless of the outcome of that report and whatever findings it may make - I will be quite happy to come in to this or any other committee to discuss any matters of relevance that the committee seeks to inquire into.