Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

As the Deputies are aware, I published the report of the O'Higgins commission of investigation into certain matters relevant to the Cavan-Monaghan division of the Garda Síochána on 11 May. The report deserves the most careful consideration so that we can do everything possible to avoid a repeat of the issues that gave rise to the commission in the first place. The Government accepts its findings fully.

Our focus now should be on ensuring that victims of crime receive the level of service from An Garda Síochána that they deserve. However, given the comments made by the Deputies, I want to deal with the matter of the alleged stance of the Garda Commissioner's legal team at the commission. I must preface my remarks by making it clear that there are severe constraints on what I can say in this regard. To do so, I must refer the House to section 11 of the Commissions of Investigation Act 2004. The Act contains a prohibition, with limited exceptions, to the disclosure of any evidence given, or the contents of any document produced, by a witness while giving evidence in private at such a commission. As the Deputies are aware from the earlier discussion, evidence was given in private to the commission by 97 witnesses over 34 days. Mr. Justice O'Higgins in his report referred to the confidentiality of its proceedings saying that, in accordance with the provisions of the Act, the commission took all necessary steps to ensure the confidentiality of its proceedings. All of the proceedings into the evidence were in private and there was no request from anyone to have them in public.

I will make the general point that partial disclosures of what happens in private at commissions of investigation are inherently unfair to those who participate in such commissions and properly feel bound by the laws that apply to them. All 97 witnesses before the commission have rights with regard to the confidentiality of the commission's proceedings and I have a duty to respect those rights. I suggest that all Deputies have those rights. Above all, I have a duty to respect the law. That duty is not diminished by the fact that some media reports purport to set out a small part of what may have happened at the commission's private proceedings, notwithstanding any legal prohibitions in that regard.

I am aware of suggestions that it would not be unlawful for the Commissioner to disclose the instructions that she gave to counsel, as this would not involve discussing evidence given at the commission.

Leaving aside the legal position set out in the 2004 Act, it seems it would be a significant change to the generally accepted position that communications between a lawyer and a client should not have to be put in the public domain. To put it mildly, it would be very unusual to ask any party to a legal proceeding to disclose unilaterally its dealings with its legal representatives. In any event, this would actually involve a partial disclosure of what happened at the commission and could serve to undermine its work. It is hardly a demand that the Deputies would make of any other party to the commission.

For the reasons I have explained, I do not believe it is appropriate for me to comment on the specific reports that have appeared in the media, and further reports this evening on the 6 o’clock news, about what happened at the commission. I welcome the Garda Commissioner’s clarification, which was issued last night. She repeated that she accepts fully the commission’s findings. Of course, that includes accepting fully what the commission had to say about Sergeant Maurice McCabe.

There is no obligation on anyone to accept the findings of Mr. Justice O’Higgins. I said on the publication of the report that I hoped everyone affected would accept that Mr. Justice O’Higgins had fairly tried to do justice to the position of all. I believe that to be the case. However, it would be very unwise and unfair to attempt to rerun the commission’s proceedings on the basis of allegations about what may or may not have happened at a part of the commission’s proceedings. Suggestions that there should be some form of investigation, as we have heard tonight, into what happened during the proceedings of the commission of investigation seems to me to fundamentally misunderstand the nature and purpose of commissions of investigation. As I indicated when publishing the O’Higgins report, we should not lose sight of the central fact that at the heart of this report are victims who were let down. Our focus should now be on taking all the steps necessary to ensure that does not happen again and that we have a policing service that serves all the citizens of this country to the highest standard. I have had preliminary discussions with the Garda Commissioner about taking forward the recommendations about policing contained in the report, and I have every confidence in her commitment to take these forward.

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