Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

I move:

That Dáil Éireann believes that a revision of the terms of reference of the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters - the Charleton tribunal - is required and should take place to take account of the recent revelations regarding the Department of Justice and Equality, Ministers for Justice and Equality past and present, the Attorney General's office and An Garda Síochána.

Beidh mé ag roinnt mo chuid ama le Teachtaí eile. Braitheann sé ar cé a thagann in am. I will take approximately eight minutes.

It has been clear in recent days that the Department of Justice and Equality has quite serious and fundamental problems, a point that has, I think, been acknowledged by Government spokespersons. There have long been concerns about the Department. This is the reason the Toland report was first commissioned. What the Toland report found was a "secretive and closed" Department, so much so that secrecy was "part of its DNA". It had "significant leadership and management problems", and Mr. Toland recommended "fundamental and sustained organisational and cultural change". The quite shocking revelations of recent weeks underline this even further. They led to the resignation of the former Tánaiste, which was caused in substantial part by a Taoiseach trying to brazen out a controversy despite clear wrongdoing and despite his having knowledge of the later emails since Friday, as, apparently, did Deputy Micheál Martin. If the latter had intended to allow a fudge, permitting the former Tánaiste to remain in place right up until the public outcry on Monday night, this raises questions about his judgment. In general, serious questions have been raised about the culture in the Department, particularly in the context of how the documents at the heart of this controversy were not found earlier and sent to the Charleton tribunal.

Yesterday evening, we attempted to bring forward a motion which outlined very specific changes. The motion was ruled out of order for procedural reasons - unfairly, in our view. We have therefore brought forward a motion which calls on the Government to amend the current terms of reference to include explicitly a number of matters. The proposals we brought forward would have explicitly included the Minister for Justice and Equality and Department officials. In order that people understand what changes we feel are required and why they are required, I circulated to all Members early this afternoon a copy of draft changes I will propose. If any Member does not have this, I can arrange for him or her to receive it. These changes would do a number of things. First, they would allow the commission to investigate what knowledge officials, advisers and Ministers in the Department of Justice and Equality had of the issues under discussion at the tribunal. The current terms only allow for investigation of the knowledge of the former Commissioners, Mr. Callinan and Ms O'Sullivan, which is a significant shortfall and a significant difference. Second, the changes would make explicit that contacts with the Department of Justice and Equality fall within the scope of the tribunal. Quite substantially, and crucially, the changes also include a new term of reference relating to the possibility of a cover-up, suppression or a deliberate failure to disclose central documents on the part of the Department, the Garda and the Attorney General's office, as per recent revelations.

This is an issue of the greatest seriousness and one which was not truly anticipated by the Government at the time of the drafting of the terms of reference. However, it is central to the current controversy because the Minister's explanations for the late discovery of these documents are simply not credible. Likewise, the Minister's explanation for not reading the email on 13 November, when he was informed by telephone of it, is not credible. He says he did not read the email until the same date as the Taoiseach read it. He felt no need to ask further questions as to what the email contained regarding the nature of the legal dispute referenced at the O'Higgins commission, yet he allowed a press release to be issued on the following day which stated:

It was solely a matter for the parties to the O'Higgins Commission of Investigation to decide what legal approach to take to the work of the Commission, taking into account the legal advice available to them. In the circumstances, the Department of Justice and Equality would have had no role in determining the approach ... taken by the Garda Commissioner to the Commission in question.

There is a clear reference here to what was a legal strategy and the subject of the email referenced in the phone call. How could the Minister not join the dots? How did he feel he could make a public comment on the legal approach taken by the former Commissioner yet not check any further when he got a call stating that he had received an email on the same subject.

I return to the specific issue I raised with the Minister yesterday. He confirmed that these documents are new and that they were never considered for either the Iarfhlaith O'Neill scoping exercise or the discovery order for the Charleton tribunal. These searches showed up something of the order of 230 documents for the tribunal. I ask again, how is it possible that, in the context of a scoping exercise or a discovery order, emails from the key officials and political staff within the Department, including the former Minister herself, were not considered? Is it the case that these email accounts were not checked? How is it possible they did not show up in searches, given where they were located? It is beyond extraordinary. Email searches are not especially complicated procedures. The Minister needs to find out and answer whether these email accounts were searched and, if not, why not. Furthermore, there are enough questions there to warrant another question being asked: was there a cover-up, a suppression of information or a deliberate failure to disclose documents? The tribunal needs to consider that matter.

The Taoiseach has initiated a so-called external review. For a start, we believe that review should be carried out by someone outside the Civil Service. However, we also believe this is likely to be a private affair and largely a procedural initiative and unlikely to probe underlying intent, which is crucial. What caused these emails not to be discovered? An exploration of this question, heard in public, would be an important step in getting to the truth and restoring public confidence. I believe this question arises in the minds of many, and the only way for the Minister to have it proved or disproved is through the tribunal. As I said, this was not considered at the time and it is essential to have it probed now. I will quote what I believe is a very pointed, well-argued piece by Fintan O'Toole published in The Irish Timesyesterday. It states:

[I]n any case, it is highly implausible that the only documents missed in the trawl in February happen to be the ones that are most relevant to the tribunal's task of investigating contacts between the Garda and members of the Government on the alleged smearing of Maurice McCabe ... the department handed over fewer than 300 documents to the tribunal. This is by no means a massive cache - the explanation that the explosive emails were needles lost in a giant haystack simply doesn’t wash.

The suspicion of deliberation is, moreover, enhanced by subsequent events: the refusal to answer Alan Kelly's questions in the Dáil, Frances Fitzgerald's now discredited claim to have had no knowledge of the Garda strategy to attack McCabe, Charlie Flanagan's extraordinary reluctance to tell his own Taoiseach that he was misleading the Dáil when he insisted that Fitzgerald knew nothing of the whole affair until it eventually became public.

Unless we hear a very good explanation, we have to assume that the withholding of the emails was deliberate. And this is an extremely serious business. If Katie Hannon had not revealed the existence of the first email last week, it seems likely that the Charleton tribunal would have proceeded on the basis of radically incomplete information - an abuse, as the judge said, of public resources, but also a defiance of the democratic will of the people as expressed by unanimous votes in both houses of the Oireachtas.

This makes the case quite clearly, and it is indeed a very serious business.

It is in fact a criminal offence under the Tribunals of Inquiry (Evidence) (Amendment) Act 1979. In addition, if it is the case that the Charleton tribunal was hobbled by this, we now also need to find out how this happened and if someone deliberately failed to hand over these documents. The Minister, the Taoiseach and the Government have said they do not fear the truth. Given the Government and the Taoiseach's commitment to transparency on this issue in recent days, as well as a similar commitment from Fianna Fáil, I hope they will support this logical step. The existing terms of reference are clearly not adequate to explore this matter. The seriousness of the potentially deliberate suppression or withholding of documents is that serious that it requires discussion via the tribunal in public, and that is a change we need to make in this House.

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