Eamon Ryan (Dublin Bay South, Green Party) | Oireachtas source

I am glad that Sinn Féin has tabled this motion. I have listened to what Deputy Jim Daly said. I agree with the intent of the motion that the terms of reference need to be revisited. My recollection of us setting them in February this year is that it was very typical of how the Oireachtas worked. There was a real political head of steam about what had happened with the Tusla files on the allegations made against Sergeant McCabe being shared by the Garda. There was also a lack of trust between Fianna Fáil and Fine Gael about whether they were being told the truth. At the time everyone thought we were in a political crisis that would lead to the fall of the Government. However, as soon as that issue was teased out and resolved - it did not lead to an immediate political problem - the difficulty was that when we came to set the terms of reference, we rushed through the last critical piece and did not get them right. We did not spend the right amount of time on it. We had very limited time to actually set the terms of reference.

We tabled a number of amendments to address the concern that the terms of reference which allowed for an investigation of communications up to May 2014 should be extended to May 2016. We felt that the terms of reference were excessively narrow and restrictive in looking at the emails sent between RTÉ, the Garda and other bodies that were involved. As I mentioned in one of the debates with the Taoiseach yesterday, we proposed that the Department of Justice and Equality be listed as one of the organisations subject to investigation. The Taoiseach said the current terms of reference covered that eventuality because one of the subclauses allowed for the Charleton tribunal to look at other State bodies. I think the original wording was deliberately drafted in such a way as to try to keep the Department of Justice and Equality out of the frame. That is the concern.

To a certain extent, what we have heard about in the past two weeks gives me valid reason for such concern. My concern is based on the fact that a tribunal is a cumbersome and awkward body. I have been involved in one or two previously. Unless the terms of reference are really nailed down and there is real clarity about what is being investigated, there is a danger that the tribunal judge could say he or she is not being given that leeway. There is a case to be made for a more forensic re-examination of the terms of reference to take into account what we have heard here in the past two weeks. That is a hugely important part of what is happening. If we are to restore faith in the Department, the House and the entire process, we need to carry through the objective which the Taoiseach mentioned yesterday of full transparency and seeking the truth. What is to be lost by really looking at the terms of reference to make sure we will actually achieve this objective? If there had not been a resignation yesterday, if the matter had been resolved between Fianna Fáil and Fine Gael and it was decided that the Charleton tribunal would be the body to discern the truth of what had happened with the Department of Justice and Equality emails, we would have been on an incredibly tight timeline because the whole political system would have been waiting for the outcome. Some of that pressure is now off us. Therefore, I do not see what is to be lost by having a completely thorough review and revision of the terms of reference of the tribunal to take account of what has happened. That is important for the Department of Justice and Equality. There have been many things said in recent days, but I think everyone agrees - the Minister and the Taoiseach have said it - that the Department has to come out of this as a completely changed institution.

Taking the example we put forward, it is perfectly valid to include the Department in the terms of reference and to allow the tribunal to specifically examine how it acted. In response to questions we asked last night, I understood the Minister to say that the emails had not been forwarded to the tribunal as a result of certain legal difficulties. I did not get an opportunity to ask about the exact nature of those legal difficulties. However, I would like to know because that is not an insignificant issue and it deserves to be the subject of a separate strand within the tribunal, which we could set out in the latter's terms of reference. If there are legal issues, the Charleton tribunal is perfectly placed to consider them and to come back to this House with a view as to whether they are valid. I cannot see a better way for us to look at that. The alternative would be to wait for the DPP to take a criminal prosecution or to try to build up a case. That would certainly not be quicker and I would prefer it to go through a tribunal process. I agree with Deputy Clare Daly; I trust Mr. Justice Charleton to be able to make an assessment of those legal arguments and to come back to this House with a recommendation as to whether it was appropriate. Whether there are criminal trials after that would be decided separately.

That is one example of an issue in respect of which we need to ask real questions and obtain some independent assessment, and the Charleton tribunal is perfectly placed to facilitate this. We should avail of the opportunity to amend the terms of reference in light of what has happened and ask for an opinion specifically on that point. In his wrap-up, the Minister may have a chance to answer that question and give me some indication as to what are the legal difficulties in respect of providing the relevant emails to the tribunal. I would appreciate that. Even if he is able to do so, I would still argue that the matter to which I refer would make a very valid case for revision of the terms of reference to ensure that we get clear answers to those questions.

I commend the Sinn Féin motion, which we fully support.

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