Mick Wallace (Wexford, Independent) | Oireachtas source

I am sharing time with Deputy Clare Daly.

There is no need to revise the terms of reference for the Charleton tribunal and we will not support the motion. Paragraph (h) of the terms of reference states:

(h) 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.

We wrote to Mr. Justice Charleton last March, before the tribunal started and before the issues of the last two weeks came to light, asking him to include the Department of Justice and Equality and the Department of the Taoiseach and their contact with An Garda Síochána when the hearings under paragraph (h) are to take place. With regard to paragraph (h) and "any other State entities", Mr. Justice Charleton has said that he interprets this as "including any body whether established by statute or otherwise or supported or established by the State". Obviously, the Department of Justice and Equality, the Office of the Attorney General and the Chief State Solicitor's Office fall under this category.

If, for the sake of argument, the recently retired Secretary General of the Department of Justice and Equality argues that he does not fall under this category any more, and I am not saying that he will do so, he is caught in the next category, "or any relevant person as the Sole Member may deem necessary to carry out his work relevant to the matters set out ...". The same applies to the retired deputy secretary general, Ken O'Leary, who was interacting with Nóirín O'Sullivan by email or even my good friend, the former Minister, former Deputy Alan Shatter. To give credit to the former Minister for Justice and Equality, Deputy Fitzgerald, paragraph (h) in the terms of reference is a catch all provision. If Mr. Justice Charleton wishes to speak to somebody, he can. I spoke to a solicitor for the tribunal today who told me the tribunal is starting with paragraph (h) on 8 January next.

5 o’clock

Mr. Justice Charleton has the power to ask the Oireachtas to amend the terms of reference for the tribunal and he has not done so. His work to date has been excellent. We have been down to the tribunal on three occasions and have been seriously impressed with him. We think he is a right one.

A broader issue that has been highlighted in the past two weeks involves how Government Departments and State bodies deal with records. Sinn Féin wants the terms of reference revised to take into account that there was a suppression of documents or other information which should have been provided to the disclosures tribunal. The problem with this is that there no legislation that states that Government Departments or State entities are obliged to make records in the first place. The Freedom of Information Act 2014 and National Archives Acts, which constitute the legislation that regulates State records, only apply where a record actually exists in the first place. Neither Act requires Government Departments or State entities to make records in the first instance. There is no overall regulation of maintaining records so each Department has its own system. While the Charleton tribunal has the powers to compel the production of evidence, these powers are of little use where the evidence never existed. NAMA is a perfect example. It now has a policy of deleting the emails of staff one year after they have left the agency. This should be illegal but, unfortunately, it is not. We need legislation in this area. NAMA came under FOI on 13 April 2015. A number of days before that, on 12 March 2015, at a board meeting, NAMA said that it was recommended that the board resolve to approve the proposal that email records of NAMA officers be deleted one year after their departure from the agency and that approval was also sought to apply this proposal retrospectively to the email records of former NAMA officers. No good Government would have allowed that to happen. I know the Minister did not do it but the former Minister for Finance did and it was a crazy thing to do. It was like destroying the records of the State. It was nuts given that this is a State body and should be open to scrutiny.

Deputy O'Callaghan asked whether the Minister was aware of the strategy applied by the former Commissioner or whether the terms of reference for the tribunal might be a bit different if we had known that. I do not agree. I think the Deputy is underestimating Mr. Justice Charleton, who is perfectly capable of dealing with this. I have 100% confidence in him.

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