Michael McDowell (Dublin South East, Progressive Democrats)

This matter was debated last December and it is one to which all sides of the House were anxious to return. I acknowledged in my contribution at the time that many of the relatives of victims of the Omagh bombing would be disappointed with what I had to say. No Member in the House would indulge in an opportunistic competition of compassion or pretend that the determination to see justice done in this case is any greater or lesser on any side of the House. We all still revile the Omagh atrocity and its sick perpetrators. I am equally sure there is no desire on the part of anyone in this House to turn the issues relating to the Nally report or indeed the investigation of the Omagh bombing itself into party political issues. They do not have a party political dimension or an inherent partisan potential.

It is equally important to emphasise that the Nally group was not involved in the investigation of the dreadful crime perpetrated in Omagh. That was and is a matter for criminal investigation by the Garda Síochána and the Police Service of Northern Ireland. I have been assured by the Garda Commissioner that he and his force, in close co-operation with their colleagues in the Police Service of Northern Ireland, remain determined to take every step open to them to bring the perpetrators to justice. I remind the House that the one successful prosecution so far on charges relating to the bombing in Omagh has been in this jurisdiction. All Members recognise the burning desire of those who lost loved ones in the appalling atrocity in Omagh for justice to be done and to be seen to be done. It is a desire shared by all right-thinking people.

In discussing the Nally report, I recognise that most Members are at a disadvantage since the report has not been made available to them. During the last debate Deputies Kenny and Rabbitte acknowledged that I forwarded a copy of the report to them for their personal information. I felt that this was the right thing to do in circumstances where the report could not be made public, but was to be debated in the House. Both are leaders of the main Opposition parties and had previously served in Government. I emphasise that it would be entirely unfair to the Deputies to expect that they could properly put themselves in the position of deciding to put into the public domain any parts of the report, received on that basis, dealing with sensitive issues of national security. Decisions of that kind rest with me as Minister for Justice, Equality and Law Reform and I take full responsibility for them. Given the decision not to put the report into the public domain we are obviously not in a position to discuss the detail of it across the floor of the House but if there are any aspects of the report itself which Deputies wish to raise with me privately, they are free to do so.

I do not propose to repeat in detail what I said in the House last December but it is appropriate to set out the background and the main findings of the report again. Before doing so, however, I remind the House that certain legal issues arise because all the allegations which the group looked into were made by a member of the Garda Síochána who is currently suspended and facing indictable charges on unrelated matters. I assure the House that this is not some theoretical legal consideration but one which places real constraints on what any Member can properly say in public. The report deals with the credibility and the motivation of that person. There is a real genuine constraint on me in dealing with that matter in advance of that person having a jury trial. It is not some smokescreen behind which I am seeking to hide. On the contrary, it is a restraint that puts me between a rock and a hard place.

On 22 March the police ombudsman for Northern Ireland, Mrs. Nuala O'Loan, presented a report to the Minister for Foreign Affairs, Deputy Cowen. The report in question related to allegations made by a person described as a serving officer of the Garda Síochána about the handling of intelligence information concerning the activities of a paramilitary group in that year, and about drug related matters in the period 1995 to 1996. Despite the fact that the person in question made those allegations to a person outside the jurisdiction who has no direct responsibility for the Garda Síochána, it was decided by the then Government, in view of the absolute gravity of the allegations involved, that an examination of the issues should be carried out independently by Mr. Dermot Nally, former Secretary to the Government, Mr. Joseph Brosnan, former Secretary of the Department of Justice, Equality and Law Reform and Mr. Eamon Barnes, former Director of Public Prosecutions.

To the best of my knowledge that type of examination was unprecedented and it underlines the utmost gravity with which the then Government viewed the allegations in question. I do not believe any Member would question the suitability, integrity, competence or independence of the people involved. I believe that we are all in their debt for undertaking what was a complex, difficult and, sometimes, thankless task.

In December 2003 I outlined the three categories under which the group characterised the allegations but, in truth, in so far as Omagh was concerned, I accept that, at least in the public perception, the main suggestion was to the effect that the Garda failed to pass on to the RUC information which could have prevented the Omagh bombing. Obviously the implications of that charge, if true, would be of the utmost gravity.

The group informed me that it held its first meeting on 29 April 2002 and subsequently met on 62 occasions. It interviewed 25 persons, some more than once. It received a number of written submissions, some from people it did not consider necessary to interview in person. The group acknowledged that it had the fullest co-operation of the Garda authorities, including access to all relevant material. The group also informed me that it had concluded after careful analysis that there was no foundation to the allegations which it examined.

That is not to say the group dismissed everything the person who made the allegations had to say. Without doubt, that person submitted a considerable amount of factual information to the group but the core of the allegations which would have amounted to egregious misfeasance and non-feasance was examined in minute detail and these allegations were rejected in their entirety. People not familiar with these matters in detail might wonder why, if the report is so clear in its dismissal of these appalling allegations, it should not be put in the public domain for all to see. In its covering letter accompanying the report the group states:

The Report deals with highly sensitive matters involving the security of the State and possible risk to the lives of individuals. It also describes Garda operational procedures and methods, public disclosure of which could adversely affect future operations.

As I indicated last December, if there were no other considerations of the wider public interest I would be more than happy to put the report into the public domain. The position remains, however, that I do not believe that any Minister for Justice, Equality and Law Reform, no matter how strong his or her desire to deal with the concerns of relatives, could simply put such a report into the public domain. The Taoiseach and I have been anxious to put as much information as we can about the report into the public domain. Deputies Kenny and Rabbitte have raised the question of whether anything more can be done to brief the families on its findings. In particular we were asked to look again at whether some redacted form of the report could be made available.

I outlined last December the difficulties with a redacted form of the report. I have since looked at the issue again and the difficulties I mentioned cannot be surmounted at present. However, I hope, once the criminal matter to which I have referred is disposed of, to produce an edited version of the report. However, I must stress there are also national security considerations which will be there regardless of the institution or outcome of any criminal proceedings. I am prepared, if the families consider it useful, to meet them again as I undertook that I would be willing to do and to discuss the report with them in general terms. I do not want to mislead either this House or the families into thinking that I am in a position to disclose in detail the substance of the report. Some of the spokespersons for a group of the relatives make the point that they are the people who have suffered the most as a result of the bombing at Omagh and this gives them an entitlement to see the Nally report. I have no doubt that there is widespread sympathy for that point of view but as Minister I have wider responsibilities. I must act within the law, having regard to the rights of everyone and ultimately to where the public interest lies. It is by no means a question of my not trusting the Omagh families but it is simply not a sustainable proposition that the victims of crime have a right to all information irrespective of its implications for national security, the rule of law and the rights of others.

This State, and the people of this island North and South remain locked in a life and death struggle with the murderous group which perpetrated the Omagh slaughter. It has been thwarted since then in barbarous plans to carry out bombings of the same scale and ferocity. It plans to strike again. My first duty is to prevent it from doing so and I will not help it by sacrificing security in a short-term gesture of compassionate transparency much though one would be emotionally tempted to do so. Having said that, I can assure the House that at any meeting with the relatives I will be as forthcoming as I can within the real constraints which apply.

I mentioned earlier the public perception that the core allegation the group was asked to examine was to the effect that gardaí failed to pass on to the RUC information which could have prevented the Omagh bombing. As I pointed out last December no such allegation was ever made to the group. On this point the group states:

The core allegations . . . about events preceding the Omagh bombing are that: a senior Garda officer would have been prepared, if a vehicle had in fact been stolen . . . to allow it to go through in order to protect [an] informant; and [that] no intelligence was passed to the RUC about information, alleged to have been received on the eve of Omagh that the RIRA, who had been trying to steal a vehicle in the Dublin area, had obtained one elsewhere (place, vehicle type and destination unspecified).

The group acknowledges that these are very serious allegations but goes on to state:

However they are quite different from allegations that the gardaí let the vehicle which was used in the bombing in Omagh go through or that they had intelligence about that vehicle. . . which they had failed to pass on to the RUC. No such allegations have been made to the Group and no basis for any such allegations has come to its attention.

That is a radically important distinction that the group drew and sometimes it becomes blurred in public comment and debate but I appeal to Members to bear that in mind. I cannot overemphasise the importance of that point. It has, for whatever reason — and, I suspect, for hidden reasons of malice — become part of general lore that the Nally group was, among other things, examining allegations that the Garda had intelligence about the vehicle used in the Omagh bombing, that it failed to pass that intelligence to the RUC and that it let the bomb vehicle through. For the simple reason that nobody at any stage made those allegations to the group, the group examined no such allegations.

Whatever the public perception, it was never suggested to the group that the Garda in advance of the Omagh bombing had any information on the details of a car which would be used in the bombing or where a bombing would take place. In that context I am aware of intensive media speculation about the matters considered by the group while its work was ongoing. It is not for me to offer a view on the basis for that speculation. I am aware too that some of the Omagh relatives appear to have been briefed in detail about certain allegations made by the person in question. The investigating group had access not just to the account of that one person but to a wide range of information which it felt compelled it to reach the conclusions it did.

During the debate last December and during a subsequent debate, Deputy Kenny made several points with which I did not have an opportunity to deal at the time but which I will deal with now. I hope what I have to say clarifies certain matters for the Deputy. I want first to deal with the role of the Police Ombudsman for Northern Ireland. He said that Ms O'Loan carried out significant preparatory investigative work which formed the basis of the Nally group report. In fact what happened was that her office was approached by the person making the allegations and subsequently she handed over a report to the Minister for Foreign Affairs. Her report was available to the group and it did meet the ombudsman, but it was a matter for the group to examine the allegations having access as it did to members of the Garda Síochána and their records. While the ombudsman's report would have formed part of the material available to the group, it would be misleading to suggest it formed the substantial basis for its report.

That leads me to another point, namely, that the Police Ombudsman for Northern Ireland does not have a function in investigation allegations made about the Garda Síochána. Members of the Garda Síochána would not be obliged to answer to the Northern Ireland police ombudsman, no more than members of the PSNI or the British police could be made to answer to our Garda Complaints Board — or in future to our ombudsman commission — if the board received complaints from serving members of those police forces. Once this jurisdiction was informed of those allegations it was clearly a matter for the authorities here to deal with them. It may be helpful to point out to the House that in its covering letter with the report the group stated:

On the issue of [the person] raising his concerns with the authorities of another jurisdiction, you may wish to be aware that he told the Group that during an interview with an investigator from the Office of the Police Ombudsman in early 2002 he stated that he intended to report his concerns to his own authorities. He said that the investigator told him that he was of the opinion that the detective sergeant's own authorities would not deal with the concerns properly, that the investigator would make his own report and the Police Ombudsman would go to somebody in the South with it.

I will not comment on the veracity or otherwise of what the person said in that regard but the group in its covering letter brought this matter to my attention. Deputy Kenny suggested that I should furnish Ms O'Loan with a copy of the Nally report on a confidential basis and invite her comments on its findings. I am, of course, aware of the esteem in which Ms O'Loan is held generally and properly but she is a statutory officer of another jurisdiction who has absolutely no responsibility for the Garda Síochána. Apart from that, it is not clear to me how a person who has access to one side of the story — from the person who made the allegations — could reasonably be expected to form superior conclusions on the findings of an equally eminent three-person group which spent several months examining the evidence from both sides.

Deputy Kenny also mentioned that he understood that there was an undertaking that there would be further contact between the Nally group and the ombudsman before the report was completed. I am assured that this was not so, and, I am not aware Ms O'Loan has ever made such a claim. The Deputy also said in the House that it was clear that the ombudsman viewed the allegations in a far more serious light than the Nally group. That may have been a slip of the tongue and I am not sure what he intended to convey by that claim. However, I am sure he did not mean to suggest that Mr. Nally and his colleagues would regard the behaviour which was alleged to have taken place as any less serious than would any other right-thinking person. There would be no credibility in suggesting that three people with the long and distinguished records of public service, which these men had, would regard the allegations made in this case as matters to be treated lightly.

Certain other suggestions have also been made about the Nally group, which also merit a response. It has been suggested that the group lacked the expertise necessary for the task in hand and that it should have been left, instead, in the hands of trained investigators. I reject this — all those involved are former public servants who had reached the highest levels in their profession. All three have had years of experience in dealing with difficult and complex issues of considerable variety, of weighing up information, forming judgments on that information and advising Governments of their assessments. The idea that they were ill-equipped for the task in hand does not stand up to scrutiny.

Outside this House it has also been implied that the presence of the former Director of Public Prosecutions on the team rendered its analysis less than objective. This suggestion should be rejected by all sides of this House. Not only does it imply that the former director lacks judgment, but it feeds into the notion that, right from the beginning, the authorities in this State have been engaged in some kind of cover up. I have already pointed out in the House that the notion of cover up is quite simply preposterous — the record in this jurisdiction in dealing with dissident republican groups certainly does not support the notion that the State is providing cover for those organisations.

Deputy Kenny also raised some specific details in the House about the report, which I had not put into the public domain. I know he will appreciate the difficulties inherent in that approach and I cannot be put in the position of effectively disclosing the details of the report on the basis of responding to what any Deputy might say. However, one fairly widely reported point calls for comment. Deputy Kenny claimed that a key participant — an informant — was not interviewed by the group and refers to this as a major omission in the report. He said the report does not adequately explain why a group appointed by the Minister could not have done more to secure an interview with the participant.

The report sets out the efforts which the group made in this regard and I am not sure what further action Deputy Kenny feels may have been open to the group where a person declined on legal advice to co-operate with it. Today I have heard the suggestion that since this person was on a witness protection programme, the Garda should have had some influence or leverage over the person, which could have been used to get the person to co-operate and to ignore the legal advice given to him. If the Garda used the status of a person on the witness protection programme for that purpose, it could be accused of attempting to taint or blackmail the person and it would taint the evidence that any person gave to the inquiry thereafter.

In any case, while the group felt it was deeply regrettable it did not receive the co-operation it had hoped, it nevertheless felt not merely able but compelled to reach the conclusions it did. The group was asked to carry out a particular mandate completely independently. It felt able to reach the conclusions I outlined to the House. It is open to Deputy Kenny to say "I would have done this" or "I would have done that", but by that logic there could be inquiries into inquiries ad infinitum.

That leads me to calls, which have been made, for some form of public inquiry into this matter. Deputies understandably make the point that we should do anything we reasonably can to deal with the concerns which relatives have. None of us can say that the people who suffered most from the atrocity at Omagh are wrong to explore every avenue and to press for action on every front. As I have said, I am prepared to meet them again in what I hope will be a useful and productive meeting.

However, we cannot overlook the basic facts. One person has made a series of charges, which his colleagues all vehemently deny, after he himself was accused of serious offences. An independent group of the highest calibre investigated those allegations and rejected them as unfounded. In those circumstances there is nothing known to me or the Government which would justify a public inquiry. Repetition of unfounded allegations will not alter that situation.

This leads me to a more general point of which we should not lose sight in this debate. The allegations in question, if true, would have amounted to egregious and wanton misbehaviour on the part of a number of senior gardaí. An independent group has looked at those allegations and dismissed them as unfounded. We cannot proceed on the basis that the only people who have no rights in this matter are the gardaí against whom the allegations have been made.

Ultimately, if people wish to believe that some vast conspiracy is taking place involving many members of the Garda Síochána, myself, my predecessor, the Government and the group to hide the truth, then there is nothing I can do about such a view. However, it would be a desperate pity if one of the legacies of Omagh would be that the Garda Síochána, which now and in the past has relentlessly fought the threat posed by paramilitary groups and whose members have risked life and limb to defeat the Omagh bombers and their fellow members of a murderous conspiracy were, however unwittingly, to be unfairly undermined.

I know it will be the desire of all Members of this House to move forward as positively as we can on this matter and I have indicated that when these criminal proceedings are dealt with one way or another, I will revisit the issue of an edited report to go as far as I can within national security limitations to meet the interests and the genuine complaints of the Omagh relatives and of other members of the public. However, that is as far as I can go at the moment.

See this speech in context