Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I very much recognise the disquiet and concern expressed in this House and the Upper House regarding matters pertaining to material discovered to the disclosures tribunal by my Department in recent days following a number of search and retrieval processes. I remind the House of my statement last evening wherein I explained that responding to parliamentary questions about issues that, prima facie, fall under the tribunal's terms of reference arose would, from my understanding, amount to a breach of the Standing Orders of the Dáil, improperly encroach on the workings and proper functioning of the tribunal and amount to a parallel process, thereby having the effect of undermining the tribunal. As the Ceann Comhairle is aware, I have sought the counsel of his office in respect of how this House might go forward in addressing parliamentary questions of this nature. I look forward to hearing from the Ceann Comhairle about this. It is absolutely essential that we, as parliamentarians, whether as members of the Government or the Opposition, all know and are informed of the parameters within which these issues can be discussed, having regard to the fact that there is a tribunal of inquiry which was agreed by a resolution of the House and which has commenced its work. The tribunal has been engaged and charged with the type of activity that is the subject matter of debate in the House. I look forward to hearing from the Ceann Comhairle in respect of this matter.

We are all aware that the tribunal has been sitting in private session recently because it is engaged in a scoping exercise regarding term of reference [p], which addresses the matter of the targeting or discrediting of any garda who has made a protected disclosure prior to 16 February 2017. As a result of the fact that the tribunal has not been holding public hearings, I am of the view that Members may perhaps have overlooked its very comprehensive terms of reference. Many Members made important contributions and worked closely with my predecessor in ultimately agreeing terms of reference that were acceptable to all. My view, confirmed by legal advice from the Office of the Attorney General earlier today, is that the tribunal already has the discretion to examine the matters put forward in the motion before us. For that reason, the Government has decided to oppose the motion.

I shall elaborate further on the advice provided to me. I refer to the terms of reference [e] and [h]. My advice is that the combined effect of these terms could be viewed as encompassing examination of any communications between the Department of Justice and Equality, Ministers for Justice and Equality past and present, the Attorney General's office and An Garda Síochána regarding "legal strategy". Furthermore, regard should already be had to the current term of reference [e] which provide that the tribunal is required:

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.

Term of reference [h] states:

To investigate contacts between members of An Garda Síochána and:

— Media and broadcasting personnel,

— members of the Government,

— TUSLA,

— Health Service Executive,

— any other State entities,

— or any relevant person as the Sole Member may deem necessary to carry out his work;

relevant to the matters set out in [a], [b], [c], [d], [e] and [f] above.

Clearly, this includes all and any Departments, appropriate agencies or State entities. I am sure that Members have copies of the terms of reference before them in the context of this debate.

I am satisfied, therefore, that the terms of reference which this House formulated and agreed, provide a wide discretion to the tribunal. It is my priority, and that of the Government, to let Judge Charleton get on with his critical work. I urge Members to go back and read the record of the debate in House on 16 February 2017, when we agreed the terms of reference. On that day, Deputy Jonathan O'Brien - who has just left the Chamber - stated:

Yesterday, we met with the Minister and brought to her seven separate proposals in terms of the changes we would like to see made. I am glad to say that six of those proposals have been taken on board in some capacity.

Deputy Brendan Howlin stated:

I thank the Tánaiste for meeting me yesterday and for producing terms of reference which I believe encompass the issues I have raised. I wish Mr. Justice Charleton well. I hope his ambition to complete his work within the reasonable timeframe he has set out becomes a reality.

Deputy Jim O’Callaghan stated:

I wish Mr. Justice Charleton well in the task he has to do. He should be given the opportunity to do it without background noise from politicians or from the parties affected by the tribunal. Ultimately, we will have a report, and I believe the report will be to the benefit of Irish society.

I agree wholeheartedly with all of these comments. I have just highlighted some aspects of the long debate but they show a widespread endorsement of the House for the terms of reference as set. The reason the Opposition gave such a welcome to the terms of reference was because they recognised their comprehensive nature and the wide discretion afforded to the sole member, namely, Judge Charleton. I repeat the importance of allowing him get on with his critical work in the context of the issues raised.

On Friday last, the tribunal issued a public notice stating that:

The tribunal is mindful that the instrument setting up this process, pursuant to resolution of Dáil Éireann and Seanad Éireann, noted that "a public enquiry is the most appropriate way to investigate" the matters of "public disquiet" at issue in the terms of reference.

The tribunal, mindful that it is required "to inquire urgently into" the issues before it pursuant to the mandate of the Oireachtas as "definite matters of urgent public importance" ... [and noted that] The tribunal will sit from Monday 8 January 2018 in relation to terms of reference (a), (b), (c), (e), (f), (g), (i), (j), (k), (l) and (m).

In other words, the tribunal will inquire into issues relating to the O’Higgins commission and related issues. The public notice also indicates that the tribunal will inquire into:

... the allegations of Superintendent David Taylor as to alleged negative briefing against Sergeant Maurice McCabe and the knowledge, if any, Commissioner Callinan and Commissioner O’Sullivan, both now no longer in office, had of same, and whether Sergeant McCabe was subject to any attempt to "entrap or falsely accuse" him of "criminal misconduct". Necessarily included are telecommunications interactions, electronic and paper files bearing on same and any meeting relevant, including, but not limited to, that in Bewley's Hotel on 24 January 2014. A central part of this enquiry is as to attitudes to Sergeant McCabe and any translation of that into malicious behaviour or inappropriate action. In that regard, the tribunal is specifically mandated to enquire into any use by "Commissioner O’Sullivan" of "false allegations of sexual abuse or any other unjustified grounds" which may have been "inappropriately relied on ... to discredit" him before the Commission of Investigation chaired by Mr Justice Kevin O’Higgins. That enquiry makes relevant any "contacts between members of An Garda Síochána" and the media, or "members of the Government" or any other "relevant person" at the tribunal’s discretion. This hearing will incorporate any issue as to the RTÉ broadcasts of 9 May 2016 and the role, if any, of Commissioner O’Sullivan.

I ask all Members to accept, as I believe they will, that it is imperative that the tribunal be allowed to proceed with its work. I am legally advised that the extremely broad nature of the motion renders it unclear in the specific context what additional terms of reference, if any, might contain or seek to achieve in the public interest.

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