Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

The motion before the House seeks, in general terms, an amendment of the terms of reference of the disclosures tribunal in order that it can take into account what are referred to as "the recent revelations regarding the Department of Justice and Equality". In discussing the motion, it is important to take ourselves back to 16 February when the House, and the Seanad on the following day, passed resolutions establishing the disclosures tribunal and ask ourselves what knowledge we had at the time we considered the terms of reference. There were three real issues at the time which led to the establishment of the tribunal of inquiry.

First, a protected disclosure had been made by a superintendent based in the Garda press office. While we had known of the disclosure previously, a report of Mr. Justice Iarfhlaith O'Neill indicated that it required further investigation. He was not in a position to assess it based on the paper review he carried out and he recommended a commission of investigation. As such, there was a general consensus in the House that there should be a commission of investigation to examine the allegations made by Superintendent Taylor in his protected disclosure.

Second, a fact came to light in February which was probably the main reason that the debate changed from one on a commission of investigation to one on a tribunal of inquiry. That was the revelation that there was a Tusla file. A number of days before the debate in the House on 16 February, it was revealed on an RTÉ programme that a Tusla file had been created in respect of Sergeant McCabe which contained allegations which we now know to be false.

Third, there was a general allegation floating around at the time which was mentioned in certain media organs and the House, albeit it did not receive as much prominence as the protected disclosure or the Tusla file. That was the allegation that the Commissioner had cross-examined Sergeant McCabe in the O'Higgins commission in an unfair manner, if I can use that term, and that she had put to him allegations which were false, including false allegations of sexual abuse.

Those are the three issues which were in everyone's mind when we came to discuss the terms of reference of the tribunal of inquiry. Clearly, it was really when the issue of the Tusla file emerged that the House recognised that a commission of investigation was unsatisfactory and we wanted a tribunal of inquiry. The person who initially prompted that idea was the solicitor for Sergeant McCabe and the House was happy to accede to it.

Subsequent to the acceptance that there would be a tribunal of inquiry, there was consultation with the parties by the former Tánaiste and Minister for Justice and Equality. We all had an opportunity to have an input into the terms of the reference. Given the time available, we did pretty well in terms of the extensive terms of reference we managed to get through the House. The next day, 17 February, the tribunal was formally established through a statutory instrument signed by the Minister. From my own point of view, it never occurred to me on 16 and 17 February that the Minister was aware of a strategy that had been adopted by the Garda Commissioner in the O'Higgins commission of investigation. In fact, there was a dispute about that Garda strategy. It was mentioned in theIrish Examinerand in the House and the response was that there was one page of transcript and that it was not possible to speak about it because the inquiry was conducted in private. The general assumption was that it was an issue in dispute whether there was a strategy engaged in by the Garda Commissioner at the O'Higgins commission of investigation. No one ever thought the Minister was in any way aware of it, involved in it or even acquiescing in it. It is important to know where we were back in February.

That is where we were then, but let us think of where we are now. The motion states that the terms of reference need to be amended to take into account recent revelations regarding the Department of Justice and Equality. The issue around those revelations can be succinctly stated as follows, namely, whether the previous Minister for Justice and Equality was aware of the fact that there was an aggressive challenge to Sergeant McCabe's motivation and integrity at the O'Higgins commission of investigation. The information we have now suggests the Minister was aware. We have that information from emails dated 15 May 2015 and 4 July 2015, which were disclosed recently. The extent to which the Minister was aware of, acquiesced in or was involved in this issue is a matter of public concern. We only know a certain number of facts at this stage, which is what we see in the emails, but we do not know everything else. What we need to do is look at the terms of reference as they exist to determine whether they cover the issue which has recently arisen on foot of these revelations.

The Minister is correct technically to refer to term of reference (e) which requires the sole member to investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by former Commissioner O'Sullivan to discredit Sergeant McCabe at the commission of investigation under the chairmanship of Mr. Justice Kevin O'Higgins. That is very specific and limits the question to whether the former Commissioner engaged in this strategy. The reason that term of reference was included was because we did not know at the time whether there was any truth to the allegation and whether the former Commissioner had done that. Paragraph [h] of the terms of reference says there should be an investigation of contacts between members of An Garda Síochána and members of the Government and any other State agencies in relation to the matters set out, inter alia, at paragraph [e]. On a technical interpretation of those terms of reference, the Minister is correct that this comes within their ambit. Had it not been for recent revelations, however, it is unlikely that the tribunal of inquiry would have investigated the issues we are discussing today, namely, whether the Minister was aware of the fact that this strategy was adopted before the O'Higgins commission of investigation.

Yesterday, the Minister for Justice and Equality stated that 230 documents had been disclosed by the Department to the tribunal. I wonder how many of those relate to the issue we are talking about here today, namely, the extent to which the Minister was aware of the strategy. I do not know, but I suspect that most of those 230 documents relate to other aspects of the terms of reference which are not the subject of the recent revelations. If all we had were the terms of reference from 16 February 2017 and the recent revelations that came out, I would have a concern that the chairman of the tribunal, Mr. Justice Charleton, might not think it necessary or appropriate to investigate this issue. Fortunately, however, he made a statement last Friday which was extremely helpful.

It epitomised what a tribunal should do because we establish a tribunal "to inquire urgently into" matters of public importance that give rise to "public disquiet". This is an issue that has given rise to huge public disquiet. Last Friday, he issued a public notice in which he elaborated how he intends to interpret the terms of reference and what he says will be the way he will conduct his investigation. He said in that notice he will start hearings on 8 January 2018. In paragraph 3 of his notice, he said:

In considering those terms of reference, the tribunal is mandated by the Oireachtas, under terms of reference [h], to "investigate contact between members of An Garda Síochána" and "any relevant person" which the tribunal "may deem necessary to carry" out its work. This includes, but is not limited to, "members of the Government", the media, social services and "any other State entities". This grouping of terms of reference will be dealt with in a single hearing with a view to completing the hearings of the tribunal with the utmost expedition. This is subject to the cooperation of the parties... [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.

The statement issued by the tribunal chairman last Friday is clear and unambiguous. He is going to investigate, starting on 8 January, the issues which were the subject of recent revelations, which gave rise to public disquiet over the past two weeks. Members of Government over the past week or so also repeatedly emphasised that these issues would be dealt with in the tribunal. There is no suggestion that members of the Government will not expose themselves to the investigation of this matter. There is no suggestion that the Department of Justice and Equality will not co-operate with this inquiry and there is clear evidence that Mr. Justice Charleton regards the recent revelation as being a matter he is going to investigate. In light of the statement that the chairman issued last Friday, I do not have any concern that the terms of reference are not wide enough and I believe that we should be very careful about interfering in the process that is up and running, which is being run very efficiently and which has its timeline to start public hearings in respect of these matters on 8 January next.

The tribunal was established on 17 February and had its first public sitting ten days later, on 27 February 2017. The opening notice published by the chairman of the tribunal reveals that he is fully aware of the issues of public concern. He has indicated that he will deliver reports on a modular basis. There was a public hearing in respect of another member of An Garda Síochána, and I understand that the report on that module will be delivered this week. He has also delivered a first interim report in which he has set out the basis upon which he is proceeding with his work

If we are going to change terms of reference, we should do so in consultation with the chairman of the tribunal. The last thing we want to do is to stick our size 13 foot into terms of reference which seem to be operating efficiently until a group of politicians get together and say they have a better idea. Every person who has co-operated with the tribunal to date has done so on the basis of the terms of reference set out from February of this year. If it is now to be the case that those terms of reference are going to be changed, individuals could come along and say they co-operated on the basis of the terms of reference as set out. If they are now told there is to be some other requirement or some other line of investigation they will have a legitimate concern to state in light of that they are going to reassess their position. People have provided documents to this tribunal on the basis of a certain understanding, that it is going to investigate the issues here.

It may be worthwhile, and I urge the Minister to consider doing this and I will be interested to hear what other colleagues in the House think of it, for the Minister to write to the chairman of the tribunal, noting his public notice of last Friday, referring to this motion and stating that if he believes there is any necessity for the terms of reference to be amended or changed in any way this House would be receptive to that. If the chairman said that in light of recent revelations he needs the terms of reference slightly amended in order to enable him to investigate this line, we would no doubt all agree to that.

In his opening statement, the chairman of the tribunal referred to the work that the tribunal is required to do. Many people misunderstand what a tribunal of inquiry does. It investigates and reports on facts. It is not a body that apportions criminal or civil liability and it is certainly not a body responsible for making people politically accountable, an argument mooted in previous days. It will consider the evidence it has and reach findings of fact in respect of that evidence based on the terms of reference. It starts with a blank sheet of paper. It is wholly dependent on information being provided to it and evidence being given to it. Documentary evidence is crucial to a tribunal of inquiry because it gives an indication as to the contemporary statements, thinking and attitudes of individuals at the time those documents were generated. It is easy to come along and say that one did something two years ago but if there is an email from one stating X, Y or Z, it is more difficult to get away from that. It is absolutely imperative that everyone co-operate in providing documents.

One of the difficult aspects of this tribunal, however, in respect of the term of reference about the commission of investigation is that many of the documents may be legally professionally privileged. A person who prepares a document for a commission of investigation is entitled subsequently to say, if it has been prepared with legal advice, that they will not disclose that document because it was generated under legal professional privilege and they are entitled to claim that privilege. I asked the Minister yesterday, and I am not trying to tie him down to an answer now, but it would be interesting for the House to know if the Department of Justice and Equality has sworn an affidavit of discovery for the tribunal of inquiry. If an affidavit of discovery has been sworn, and I assume it has been, is the Department claiming privilege over documents which were generated in 2014, 2015 and 2016? The Department is obviously receiving legal advice today. Nobody is suggesting that written legal advice should have its claim of privilege lifted. In terms of documents dating from 2014, 2015 and 2016 relevant to the O'Higgins commission, however, the Department should waive its claim to privilege. The former Commissioners have waived their privilege attaching to any confidentiality that may exist in respect of their communications with other journalists.

The documents of 15 May 2015 and 4 July 2015 are particularly interesting because they evidence an awareness on the part of the Minister of a strategy being adopted by the Garda Commissioner at the O'Higgins commission of investigation. On the basis of those documents, there are a couple of facts which we can now say with certainty are true. First, there was a strategy by the Garda Commissioner at the O'Higgins commission of investigation to challenge the motivation of Maurice McCabe and to question him aggressively. The second fact is that the Minister was aware of that strategy at the O'Higgins commission of investigation. Those facts broaden the issue of concern for this House. They should be investigated and I know they will be.

It is surprising that the two documents that were not disclosed out of 232 relevant documents were documents which evidenced an awareness on the part of the Minister. For the past 24 or 36 hours we have heard condemnation of officials in the Department of Justice and Equality. We have heard that it is a dysfunctional Department. My only interaction with officials from it was in respect of a parole Bill and I found them to be extremely professional and efficient. What needs to be carefully scrutinised - we hope it is not the case - is whether politicians are seeking to blame officials in a Department for an error, which seems to have as its only benefit the protection of a Minister who was recorded as being aware of a particular topic.

When it comes to what was wrong about the O'Higgins commission of investigation and the strategy adopted there by the Garda Commissioner, we must reflect on what happened at the Guerin inquiry. The Guerin report which was published in May 2014 answered the question about Sergeant McCabe's motivation. It concluded that he was a person of integrity and recommended that there be a commission of investigation to investigate his complaints. It was for this reason he was, no doubt, so surprised - I am so surprised - that when the commission of investigation started, there was an attack on his motivation and integrity. In the light of this, I do not think it is necessary to amend the terms of reference.

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