Ms Oonagh McPhillips:

I thank the committee for the invitation.

It may be helpful to explain that following the retirement of Secretary General Noel Waters last Tuesday, I, as the second most senior official in the Department, became acting Secretary General of the Department on that date. Prior to that, I was appointed Deputy Secretary General of the Department in July of this year following an open competition. Before that, I was assistant secretary for corporate affairs. Ms Phelan is an assistant principal officer in the Secretary General's office. Mr. McKenna heads the civil law and courts policy division. He joined the Department in 2012. Mr. O'Callaghan was appointed assistant secretary for policing in September 2015, prior to which he headed the equality and integration division. Although most of my career has been in the Department, between all of us we have worked in about a dozen Departments and offices.

We have all been involved since 2014 in working to implement the Toland recommendations. Considerable progress has been achieved on the delivery of the programme in this regard, including but not limited to transforming the organisational culture; leadership and management of the Department; relationships with and governance of agencies; and management processes. The senior management team and the former Secretary General, Mr. Waters, engaged fully with the criticisms in Toland to lead real and meaningful change across all of these issues, in terms of role modelling and fostering changed behaviour, in addition to establishing the structures necessary to support and sustain the change.

At the outset, therefore, I need to address the view that has become prevalent about the competence and even probity of the Department. Members of this committee will be particularly familiar with the breadth and quality of work produced by the staff of the Department and their dedication to public service. Substantial, progressive reform has been undertaken in recent years across a range of our responsibilities – such as marriage equality, penal policy, criminal justice co-operation, insolvency and regulation in a number of challenging areas. Having said that, there is no doubt that the people who make up the Department, me included, make mistakes. I would not for one minute claim that the advice the Department gives in very complex areas cannot be questioned. One of our objectives over the past few years in tackling our culture has been to encourage questions and challenge and test assumptions more robustly, both internally around our management board table and, increasingly, by engaging publicly.

At every level in the organisation, however, there are hundreds of talented, dedicated people working, day in, day out, trying to provide the best public service they can, dealing with extraordinarily complex and challenging issues in the best traditions of the public service. Our mission is working to make Ireland a safe, fair and inclusive place, and all my colleagues give of their best in that regard.

Along with its criticisms, it should be remembered that the Toland report recognised as "key strengths" the "willingness, flexibility and can-do attitude of... loyal staff” as well as the experience and depth of knowledge across a complex range of issues. The report highlighted the culture of the Department as a key area requiring substantial change. As recommended, management conducted a wide-ranging consultation with staff and external stakeholders, including the then chairman of this committee, and a culture and values charter was published in 2016 with the objective of fostering a more outward-looking, listening, organisational culture. Recognising that producing a document does not, of itself, produce change, these values form the core of all induction and leadership training in the organisation with a view to informing the way in which the Department engages with the public, our staff and stakeholders.

Changing organisational culture takes sustained effort over time and a cross-grade team, led by the former Secretary General and me, has been working since mid-2016 to develop this and ensure that changed behaviour continues to be embedded in the organisation. As recommended in the Toland report, the Department committed itself to building organisational capability, and in 2016 a specialist head of strategic human resources was appointed to lead 65 days of in-house training, with combined attendance of over 1,800 staff. The training has been provided across a range of courses. Over 800 managers were trained on the Civil Service underperformance policy and disciplinary code; 280 front-line staff received specialist customer service training; 144 senior managers received risk management training; 47 newly appointed managers completing a specially tailored leadership development programme; and a further 190 new entrants completed the clerical officer and executive officer development programmes. Over 280 new entrants to the Department have completed induction training. I have mentioned all these training opportunities because they are grounded in, and connect to, our culture and values.

A new governance framework was adopted and published in 2016, and oversight and governance arrangements have been strengthened and formalised with the Department's 26 agencies. Structured meetings are held in line with these agreements, and informal communications has also improved. Under the Civil Service renewal plan, in common with other Departments a new performance management process was introduced in 2016 for all senior management grades in the Civil Service. I understand my Department is 100% compliant with this process. Developing leadership and management practices has been a significant focus, as well as ongoing work on internal and external communications. Significant development has taken place on statistics, evaluation, research, information systems and data. This work is ongoing.

The findings of the Toland report were taken very seriously by the management board, and we have tried to live the change and maintain the commitment to ensure implementation is sustained and embedded. Recognising that this needs to be a continuous ongoing process, we contracted external experts earlier this year to undertake a stocktake of progress to date and assist us in prioritising further reform measures for the next three years. A review of the structure has been completed, again with help from external experts. It was recently approved by the management board.

I hope these processes will be helpful to the change implementation group, which is to be appointed to assess progress in implementing the recommendations of the Toland report and ensure the acceleration of the outstanding issues, such as the organisation structure, as well as ongoing issues such as more effective communications, development of a more positive culture and the complex relationship with An Garda Síochána, which is also being examined by the Commission on the Future of Policing. Our resolve is that the extensive programme of reform which has been ongoing since 2014 will now be augmented and strengthened by the further series of measures being taken by the Government.

Turning to recent issues, I welcome this opportunity to assist the joint committee as much as possible. I am constrained, as the Chairman will understand, in that I understand the limitations that applied in the recent Dáil debates also apply to discussing matters with the joint committee. I hope members will appreciate that this means I am obliged to be extremely careful as regards discussing anything that could be deemed to trespass on the remit of the disclosures tribunal which is to begin its hearings on this issue on 8 January.

The Taoiseach outlined to the Dáil last week the various measures the Government will introduce to ensure the Department's performance and accountability and I welcome these measures. A senior barrister is to be appointed to conduct an external review of the discovery process. The change implementation group to which I referred will be nominated to assess progress. The terms of reference and membership of these reviews have yet to be settled by the Government. I hope, therefore, that members will understand that I am not in a position to comment on any specific matters related to these reviews.

Much public comment about the O'Higgins commission is based on a view that the then Garda Commissioner behaved inappropriately in terms of a legal strategy adopted by her counsel at the commission. The disclosures tribunal terms of reference include the following term:

(e) To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr. Justice Kevin O’Higgins.

The tribunal has yet to determine this issue in line with its terms of reference. I ask members to appreciate that nothing I say today should be taken as reflecting on what that legal strategy may have been or its appropriateness. These are matters for the tribunal.

I forwarded to the joint committee the series of documents published by the Department last week and I am not sure I can add much to the detail contained in them. It may be helpful, however, to explain the relationship the Department and Minister have with a commission of investigation. Members will understand that a commission of investigation is a formal legal process established following resolutions of both Houses of the Oireachtas to investigate certain matters of concern. It is entirely independent and its purpose is to investigate matters and establish facts as specified in its terms of reference. All parties before it have exactly the same rights. Irrespective of the topic, the Department's advice to a Minister would consistently be that he or she should not be involved in any way in a case to be presented by a party before a commission. Department officials also gave evidence to the commission, as they have to previous commissions, and they certainly did not consult or inform the Minister or the Department in relation to their evidence. It would have been quite improper for them to do so.

The Department's view remains that where a Minister for Justice and Equality establishes a commission of investigation into alleged wrongdoing on the part of An Garda Síochána, it would be wholly wrong for that Minister to involve himself or herself in any way in the case or evidence to be presented to the commission by any of the parties. It seems clear that if a commission became aware that a Minister was behaving in such a way, this could have very serious consequences.

Commissions can investigate the actions of a person or number of people - in this instance, members of An Garda Síochána - all of whom have the same legal rights as anyone else at a commission. It would, therefore, be unsustainable for the Minister of the day to suggest that the defences or arguments a person or persons could offer to the commission should be changed or circumscribed. It is a matter for the commission to reach its judgment on the evidence and cases made to it. Members will appreciate that if a Minister sought to influence a case that could be made at a commission, his or her ability to take action in respect of any findings where wrongdoing was subsequently established would be severely compromised.

There is one final fact in this regard that may assist the joint committee. There have been suggestions that counsel representing the Department should have objected to whatever event took place at the commission. This is a misunderstanding about how commissions operate and how this commission operated. A third party whose actions are not in question at a particular part of a commission's proceedings cannot express views on matters arising at that time. In this context, the legal team which represented departmental officials was not present at the commission hearings until a later module was considered in October 2015.

It may be useful if I set out some facts on the Department's approach to answering parliamentary questions. Standing Orders provide that "a matter shall not be raised in such an overt matter so that it appear to be an attempt by the Dail to encroach on the functions of the Courts or a Judicial Tribunal". As members will know, the Department deals with very large volumes of parliamentary questions within very tight timeframes. On any given day, staff across many areas are engaged in collecting and presenting the necessary information to the Minister to facilitate replies. The primary motivation of all staff in dealing with these questions is, as it should be, to do the best job in the time available.

The Minister has already apologised to Deputies who felt their questions were not fully answered. In light of the concerns raised, the Department is, at the Minister's request, re-examining the replies in question and looking again at the question of what further information can be provided. The Department is also reviewing its approach to parliamentary questions and will make any necessary changes in the approach to answering parliamentary questions, subject always to Standing Orders and the law. It may also be helpful to make the point that assumptions can be made in this very complex area that information is already available within the Department when this may not be the case.

Members will be aware also that the tribunal is carrying out an investigation and in these circumstances there can be issues of whether the public disclosure of information may act to the disadvantage of those carrying out the investigations.

Turning to the issue of discovery of matters to the disclosures tribunal, these are matters on which it is primarily for the tribunal to take a view. It is also the case that a senior counsel will shortly be appointed by the Taoiseach to examine this matter and report to him. Without prejudicing the rights of anyone involved, it may be helpful to make a couple of general points. The Department's view is that it has complied fully with all discovery orders made by the disclosures tribunal. What happened is that discovery orders were received in February, April and September 2017. These orders were fully complied with and documentation was compiled and forwarded to the tribunal in February, May and September 2017.

The Department has also made a number of voluntary disclosures of other matters, including three protected disclosures and reports from the Garda Commissioner under section 41 of the Garda Síochána Act. Most recently, the email chains starting on 15 May 2015 and that of 4 July 2015, which were published on our website, have also been sent to the tribunal. A report to the Taoiseach dated 27 November 2017 sets out inter alia the extent of discovery and has also been published on the Department's website. I forwarded this report to the joint committee last night. I am to some extent reassured by the tribunal's response to our recent addition to the discovery when it went to some trouble last week to acknowledge the Department's assistance to date. This letter was published and has been supplied to the joint committee.

Our ongoing priority is to ensure the tribunal is supplied with information in a manner that assists it in its work to the greatest extent possible. In this context, I should mention that the Department has not so far been party to the tribunal’s actual proceedings in the sense that it is not one of the parties that has had legal representation at the tribunal. In addition, the Minister and Department have not applied for legal representation at the tribunal. A number of officials have recently been asked to make statements to the tribunal related to the email threads of 15 May and 4 July 2015.

I make these points to try to be of assistance to the joint committee. I welcome that an independent person will shortly be appointed to examine the approach the Department has been taking. A definitive view will have to await the findings of the independent person and, in due course, any views the tribunal may have. If it is found that there are matters that should have been handled differently, I assure the committee the Department will engage fully and promptly with that.

My colleagues and staff are committed to learning the lessons of these events to ensure the Department of Justice and Equality can rebuild trust with the Government, public representatives and the public we serve. I look forward to answering members' questions as fully as I can in light of the legal constraints to which I referred.