Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I propose to take Questions Nos. 3 to 6, inclusive, together.

I became aware on 20 November of the existence of an email in the Department of Justice and Equality, dated 15 May 2015, which recounted that an official in the Attorney General's office had telephoned an official in the Department of Justice and Equality. The phone call informed the Department that counsel for the Garda Commissioner at the O'Higgins commission of investigation had raised an issue of an allegation that had been made against Sergeant Maurice McCabe. The email noted that this allegation had always been denied by Sergeant McCabe and that when a file had been presented to the Director of Public Prosecutions in relation to it, the DPP had directed that there be no prosecution.

The email went on to state that the issue had also been considered by the independent review mechanism. This had been done in the context of a complaint by a person who asserted that her allegation had not been properly investigated at the time by the Garda. This person has since become known as Ms D.

At that time, May 2015, the O'Higgins commission of investigation was still in the early stages of its work. The author of the email surmised that the purpose in raising the matter may have been to test Sergeant McCabe's motivation. The email also stated that counsel for Sergeant McCabe had objected to the issue being raised.

In relation to Deputy Kelly's question, it is not accurate to state that the Department of Justice and Equality and, by implication, the former Tánaiste were informed of the Garda Commissioner's legal strategy at the commission. In fact, the term "legal strategy" is not used in the email. What the former Tánaiste was informed in the email was that an issue which the author speculated might be argued to be "potentially relevant to motivation" had been raised on 15 May 2015 and challenged by Sergeant McCabe's legal counsel. Most Deputies will understand how the legal system generally operates - counsel raise matters and the issues are tested in argument.

What would have been wrong would have been if the former Tánaiste had sought to interfere in the work of the commission while it was under way and in the approach taken by another party to a judicial commission. She should not and could not have done so in any circumstances. The current Attorney General, having reviewed the matter, has agreed that doing so would have been inappropriate and improper.

I conveyed information to the House in good faith and used the phrase "cross-examination" as it was contained in the briefing note I had been given by the Department of Justice and Equality to assist me in giving my answers. However, this was an error and the note should have referred to "exchanges between counsel", which I understand happened during the opening statements of the commission. There is no question of my having deliberately misinformed the House. However, I apologise for inadvertently doing so.

It is important to note that, while officials of the Department were witnesses in a later module of the commission, neither they nor their counsel were present for this part of its proceedings. Counsel for officials of the Department was not even nominated until many months later, in October 2015, and only attended during the module in which the commission investigated the action the Department had taken on foot of Sergeant McCabe's allegations.

As Deputies will be aware, in response to my direction on 22 November 2017, the Secretary General of the Department of Justice and Equality provided me with an interim report on 24 November on progress made in the search and examination of departmental records, together with a full report on the implementation of the Toland report. I subsequently received a full report on the matter, dated 27 November. The former Tánaiste, Deputy Frances Fitzgerald, as well as the Minister for Justice and Equality were also informed of these developments by officials of the Department.

On 27 November the Department of Justice and Equality published the reports on its website, with two email threads which had been discovered in the course of the search and retrieval of records which have now been sent to the disclosures tribunal, a letter from the disclosures tribunal to the Department dated 22 November 2017 and a report setting out progress in the implementation of the Toland report. Officials in the Department have been advised to ensure that in the unlikely event further relevant records emerge, the acting Secretary General will be notified at the earliest opportunity and that they will be discovered to the disclosures tribunal without delay.

As I stated in the House on 28 November, the events of the past few days have once again exposed major gaps in the Department of Justice and Equality, including in the way important emails were not found and not sent to the disclosures tribunal during discovery. I have directed that there be an external inquiry into that failure. A senior counsel is being appointed to carry out the review as a matter of urgency. I have also stated the Government will establish an independent change implementation group to accelerate the process of reform in response to the problems within the Department identified in the Toland report.

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